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THE THEORY OF SOCIAL 
REVOLUTIONS 



THE MACiMII.LAN COMPANY 

NEW VOriK ■ BOSTON • CHICAGO • DALLAS 
ATLANTA • SAN FRANCISCO 

MACMILLAN & CO., Limited 

IXINDON • BOMBAY • CALCUTTA 
MKLBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TOROMTO 



THE THEORY OF SOCIAL 
REVOLUTIONS 



BY 

BROOKS ADAMS 



THE MACMILLAN COMPANY 
1913 

All rights reierved 



A3 



Copyright, 1913, 
By the ATLANTIC MONTHLY COMPANY. 

Copyright, 1913, 
By the MACMILLAN COMPANY. 



Set up and electrotyped. Published September, 1913. 



NorSnoob ^tese 

J. 8. Gushing Co. — Berwick & Smith Co. 

Norwood, Mass., U.S.A. 



©Ci.A354094 



PREFATORY NOTE 

The first chapter of the following book was 
published, in substantially its present form, in 
the Atlantic Monthly for April, 19 13. I have 
to thank the editor for his courtesy in assenting 
to my wish to reprint. The other chapters have 
not appeared before. I desire also to express 
my obligations to my learned friend, Dr. M. M. 
Bigelow, who, most kindly, at my request, read 
chapters two and three, which deal with the 
constitutional law, and gave me the benefit of 
his most valuable criticism. 

Further than this I have but one word to 
add. I have written in support of no political 
movement, nor for any ephemeral purpose. I 
have written only to express a deep convic- 
tion which is the result of more than twenty 
years of study, and reflection upon this subject. 



BROOKS ADAMS. 



QuiNCY, Massachusetts, 
May 17, 1913; 



CONTENTS 

CHAPTER PAGE 

I. The Collapse of Capitalistic Government . i 

II. The Limitations of the Judicial Function . 36 

III. American Courts as Legislative Chambers . 80 

IV. The Social Equilibrium 132 

V. Political Courts 160 

VI. Inferences . 203 

INDEX .231 



THE THEORY OF SOCIAL 
REVOLUTIONS 

CHAPTER I 

THE COLLAPSE OF CAPITALISTIC GOVERNMENT 

Civilization, I apprehend, is nearly synony- 
mous with order. However much we may differ 
touching such matters as the distribution of prop- 
erty, the domestic relations, the law of inheri- 
tance and the like, most of us, I should suppose, 
woxild agree that without order civilization, as 
we imderstand it, cannot exist. Now, although 
the optimist contends that, since man cannot 
foresee the future, worry about the future is 
futile, and that everything, in the best possible 
of worlds, is inevitably for the best, I think it 
clear that within recent years an uneasy suspicion 
has come into being that the principle of authority 
has been dangerously impaired, and that the 
social system, if it is to cohere, must be reorganized. 
So far as my observation has extended, such in- 
tuitions are usually not without an adequate 



2 THE THEORY OF SOCIAL REVOLUTIONS 

cause, and if there be reason for anxiety anywhere, 
it surely should be in the United States, with its 
unwieldy bulk, its heterogeneous population, and 
its complex government. Therefore, I submit, 
that an hour may not be quite wasted which is 
passed in considering some of the recent phenom- 
ena which have appeared about us, in order to 
ascertain if they can be grouped together in any 
comprehensible relation. 

About a century ago, after the American and 
French Revolutions and the Napoleonic wars, 
the present industrial era opened, and brought 
with it a new governing class, as every consider- 
able change in human environment must bring 
with it a governing class to give it expression. 
Perhaps, for lack of a recognized name, I may 
describe this class as the industrial capitalistic 
class, composed in the main of administrators 
and bankers. As nothing in the universe is 
stationary, ruling classes have their rise, culmina- 
tion, and decline, and I conjecture that this class 
attained to its acme of popularity and power, at 
least in America, toward the close of the third 
quarter of the nineteenth century. I draw this 
inference from the fact that in the next quarter 



COLLAPSE OF CAPITALISTIC GOVERNMENT 3 

resistance to capitalistic methods began to take 
shape in such legislation as the Interstate Com- 
merce Law and the Sherman Act, and almost 
at the opening of the present century a progres- 
sively rigorous opposition found for its mouth- 
piece the President of the Union himself. His-** 
tory may not be a very practical study, but it 
teaches some useful lessons, one of which is that 
nothing is accidental, and that if men move in a 
given direction, they do so in obedience to an 
impulsion as automatic as is the impulsion of 
gravitation. Therefore, if Mr. Roosevelt be- 
came, what his adversaries are pleased to call, 
an agitator, his agitation had a cause which is as 
deserving of study as is the path of a cyclone. 
This problem has long interested me, and I harbor 
no doubt not only that the equilibrium of society 
is very rapidly shifting, but that Mr. Roosevelt ^ 
has, half-automatically, been stimulated by the 
instability about him to seek for a new centre of 
social gravity. In plain English, I infer that he^ 
has concluded that industrialism has induced 
conditions which can no longer be controlled by ^ 
the old capitalistic methods, and that the country 
must be brought to a level of administrative ^ 



4 THE THEORY OF SOCIAL REVOLUTIONS 

efficiency competent to deal with the strains and 
stresses of the twentieth century, just as, a 
hundred and twenty-five years ago, the country 
was brought to an administrative level competent 
for that age, by the adoption of the Constitution. 
Acting on these premises, as I conjecture, whether 
consciously worked out or not, Mr. Roosevelt's 
next step was to begin the readjustment; but, 
I infer, that on attempting any correlated measures 
of reform, Mr. Roosevelt found progress impossible, 
because of the obstruction of the courts. Hence 
his instinct led him to try to overleap that ob- 
struction, and he suggested, without, I suspect, 
examining the problem very deeply, that the 
people should assume the right of "recalling" 
judicial decisions made in causes which involved 
the nullifying of legislation. What would have 
happened had Mr. Roosevelt been given the op- 
portunity to thoroughly formulate his ideas, even 
in the midst of an election, can never be known, 
for it chanced that he was forced to deal with 
subjects as vast and complex as ever vexed a 
statesman or a jurist, under difficulties at least 
equal to the difficulties of the task itself. 

If the modern mind has developed one char- 



COLLAPSE OF CAPITALISTIC GOVERNMENT 5 

acteristic more markedly than another, it is an 
impatience with prolonged demands on its at- 
tention, especially if the subject be tedious. No 
one could imagine that the New York press of 
to-day would print the disquisitions which Hamil- 
ton wrote in 1788 in support of the Constitution, 
or that, if it did, any one would read them, least 
of all the lawyers; and yet Mr. Roosevelt's 
audience was emotional and discursive even for 
a modern American audience. Hence, if he 
attempted to lead at all, he had little choice but 
to adopt, or at least discuss, every nostrum for 
reaching an immediate millennium which happened 
to be uppermost; although, at the same time, 
he had to defend himself against an attack com- 
pared with which any criticism to which Hamilton 
may have been subjected resembled a caress. 
The result has been that the Progressive move- ' 
ment, bearing Mr. Roosevelt with it, has de- 
generated into a disintegrating rather than a 
constructive energy, which is, I suspect, likely to 
become a danger to every one interested in the * 
maintenance of order, not to say in the stability 
of property. Mr Roosevelt is admittedly a strong - 
and determined man whose instinct is arbitrary, 



6 THE THEORY OF SOCIAL REVOLUTIONS 

' and yet, if my analysis be sound, we see him, at 

^^ the supreme moment of his life, diverted from his 

chosen path toward centralization of power, and 

'' projected into an environment of, apparently, for the 

^ most part, philanthropists and women, who could 

hardly conceivably form a party fit to aid him 

* in establishing a vigorous, consolidated, adminis- 

* trative system. He must have found the pressure 

toward disintegration resistless, and if we consider 

this most significant phenomenon, in connection 

with an abundance of similar phenomena, in 

other countries, which indicate social incoherence, 

we can hardly resist a growing apprehension 

touching the future. Nor is that apprehension 

allayed if, to reassure ourselves, we turn to history, 

for there we find on every side long series of 

precedents more ominous still. 

Were all other evidence lacking, the inference 
that radical changes are at hand might be deduced 
from the past, /in the experience of the English- 
speaking race, about once in every three genera- 
■ tions a social convulsion has occurred ; and prob- 
ably such catastrophes must continue to occur in 
order that laws and institutions may be adapted 
to physical growth./. Human society is a living 



COLLAPSE OF CAPITALISTIC GOVERNMENT 7 

organism, working mechanically, like any other ^ 
organism. It has members, a circulation, a 
nervous system, and a sort of skin or envelope, 
consisting of its laws and institutions. /xhis skin, 
or envelope, however, does not expand automati- 
cally, as it would had Providence intended human- 
ity to be peaceful, but is only fitted to new con- 
ditions by those painful and conscious efforts 
which we call revolutions^/' Usually these revolu- 
tions are warlike, but sometimes they are benign, 
as was the revolution over which General Washing- 
ton, our first great" Progressive," presided, when 
the rotting Confederation, under his guidance, was 
converted into a relatively excellent administrative 
system by the adoption of the Constitution. 

Taken for all in all, I conceive General Washing- ^ 
ton to have been the greatest man of the eighteenth 
century, but to me his greatness chiefly consists 
in that balance of mind which enabled him to 
recognize when an old order had passed away, and ^ 
to perceive how a new order could be best intro- 
duced. Joseph Story was ten years old in 1789 
when the Constitution was adopted; his earliest 
impressions, therefore, were of the Confederation, 
and I know no better description of the interval 



8 THE THEORY OF SOCIAL REVOLUTIONS 

just subsequent to the peace of 1783, than is 
contained in a few Unes in his dissenting opinion 
in the Charles River Bridge Case : — 

"In order to entertain a just view of this sub- 
ject, we must go back to that period of general 
bankruptcy, and distress and difficulty (1785). . . . 
The union of the States was crumbling into ruins, 
under the old Confederation. Agriculture, manu- 
factures, and commerce were at their lowest ebb. 
There was infinite danger to all the States from 
local interests and jealousies, and from the ap- 
parent impossibility of a much longer adherence 
to that shadow of a government, the Continental 
Congress. And even four years afterwards, when 
every evil had been greatly aggravated, and civil 
war was added to other calamities, the Constitu- 
tion of the United States was all but shipwrecked 
in passing through the state conventions." ^ 

This crisis, according to my computation, was 
the normal one of the third generation. Between 
1688 and 1765 the British Empire had physically 
outgrown its legal envelope, and the consequence 
was a revolution. The thirteen American colonies, 
which formed the western section of the imperial 

^ Charles River Bridge ?;. Warren Bridge, ii Peters, 608, 609. 



COLLAPSE OF CAPITALISTIC GOVERNMENT 9 

mass, split from the core and drifted into chaos, 
beyond the constraint of existing law. Washing- 4 
ton was, in his way, a large capitalist, but he was 
much more. He was not only a wealthy planter, • 
but he was an engineer, a traveller, to an extent a 
manufacturer, a politician, and a soldier, and he 
saw that, as a conservative, he must be " Pro- * 
gressive" and raise the law to a power high enough 
to constrain all these thirteen refractory units. "^ 
For Washington understood that peace does not 
consist in talking platitudes at conferences, but 
in organizing a sovereignty strong enough to 
coerce its subjects. 

The problem of constructing such a sovereignty 
was the problem which Washington solved, tem- 
porarily at least, without violence. He prevailed 
not only because of an intelligence and elevation 
of character which enabled him to comprehend, 
and to persuade others, that, to attain a common 
end, all must make sacrifices, but also because 
he was supported by a body of the most remarkable 
men whom America has ever produced. Men who,' 
though doubtless in a numerical minority, taking 
the country as a whole, by sheer weight of ability 
and energy, achieved their purpose. 



lO THE THEORY OF SOCIAL REVOLUTIONS 

Yet even Washington and his adherents could 
not alter the limitations of the human mind. He 
could postpone, but he could not avert, the impact 
of conflicting social forces. In 1789 he com- 
promised, but he did not determine the question 
of sovereignty. He eluded an impending conflict 
by introducing courts as political arbitrators, 
and the expedient worked more or less well until 
the tension reached a certain point. Then it 
broke down, and the question of sovereignty had 
to be settled in America, as elsewhere, on the field 
of battle. It was not decided until Appomattox. 
But the function of the courts in American life 
is a subject which I shall consider hereafter. 

If the invention of gunpowder and printing in 
the fourteenth and fifteenth centuries presaged 
the Reformation of the sixteenth, and if the In- 
dustrial Revolution of the eighteenth was the 
forerunner of political revolutions throughout the 
Western World, we may well, after the mechanical 
and economic cataclysm of the nineteenth, cease 
wondering that twentieth-century society should 
be radical. 

Never since man first walked erect have his 
relations toward nature been so changed, within 



COLLAPSE OF CAPITALISTIC GOVERNMENT ii 

the same space of time, as they have been since 
Washington was elected President and the Parisian 
mob stormed the Bastille. Washington foimd 
the task of a readjustment heavy enough, but the 
civilization he knew was simple. When Washing- 
ton lived, the fund of energy at man's disposal 
had not very sensibly augmented since the fall 
of Rome. In the eighteenth, as in the fourth 
century, engineers had at command only animal 
power, and a little wind and water power, to which 
had been added, at the end of the Middle Ages, 
a low explosive. There was nothing in the daily 
life of his age which made the legal and adminis- 
trative principles which had sufficed for Justinian 
insufficient for him. Twentieth-century society 
rests on a basis not different so much in degree, as 
in kind, from all that has gone before. Through 
applied science infinite forces have been domes- 
ticated, and the action of these infinite forces 
upon finite minds has been to create a tension, 
together with a social acceleration and concen- 
tration, not only imparalleled, but, apparently, 
without limit. Meanwhile our laws and in- 
stitutions have remained, in substance, constant. 
I doubt if we have developed a single important. 



12 THE THEORY OF SOCIAL REVOLUTIONS 

administrative principle which would be novel 
to Napoleon, were he to live again, and I am 
quite sure that we have no legal principle younger 
than Justinian. 
As a result, society has been squeezed, as it 
' were, from its rigid eighteenth-century legal shell, 
and has passed into a fourth dimension of space, 
where it performs its most important fxmctions 
' beyond the cognizance of the law, which remains 
- in a space of but three dimensions. Washington 
encountered a somewhat analogous problem when 
dealing with the thirteen petty independent states, 
which had escaped from England; but his prob- 
lem was relatively rudimentary. Taking the 
theory of sovereignty as it stood, he had only to 
apply it to communities. It was mainly a ques- 
tion of concentrating a sufficient amount of energy 
to enforce order in sovereign social units. The 
whole social detail remained unchanged. Our 
conditions would seem to imply a very consider- 
able extension and specialization of the principle 
of sovereignty, together with a commensurate 
increment of energy, but unfortunately the twen- 
tieth-century American problem is still further 
complicated by the character of the envelope in 



COLLAPSE OF CAPITALISTIC GOVERNMENT 



13 



which this highly volatilized society is theoreti- 
cally contained. To attain his object, Washing- 
ton introduced a written organic law, which of all 
things is the most inflexible. No other modern 
nation has to consider such an impediment. 

Moneyed capital I take to be stored human 
energy, as a coal measure is stored solar energy; 
and moneyed capital, under the stress of modern 
life, has developed at once extreme fluidity, and 
an equivalent compressibility. Thus a small 
number of men can control it in enormous masses, 
and so it comes to pass that, in a community 
like the United States, a few men, or even, in 
certain emergencies, a single man, may become 
clothed with various of the attributes of sover- 
eignty. Sovereign powers are powers so important 
that the community, in its corporate capacity, 
has, as society has centralized, usually found it 
necessary to monopolize them more or less ab- 
solutely, since their possession by private persons 
causes revolt. These powers, when vested in 
some official, as, for example, a king or emperor, 
have been held by him, in all Western countries 
at least, as a trust to be used for the common 
welfare. A breach of that trust has commonly 



14 THE THEORY OF SOCIAL REVOLUTIONS 

been punished by deposition or death. It was 
upon a charge of breach of trust that Charles I, 
among other sovereigns, was tried and executed. 
In short, the relation of sovereign and subject 
has been based either upon consent and mutual 
obligation, or upon submission to a divine com- 
mand; but, in either case, upon recognition of 
responsibility. Only the relation of master and 
slave implies the status of sovereign power vested 
in an unaccountable superior. Nevertheless, it is 
in a relation somewhat analogous to the latter, 
that the modern capitalist has been placed toward 
his fellow citizens, by the advances in applied 
science. An example or two will explain my 
meaning. 

High among sovereign powers has always 
ranked the ownership and administration of high- 
ways. And it is evident why this should have 
been so. Movement is life, and the stoppage of 
movement is death, and the movement of every 
people flows along its highways. An invader has 
only to cut the communications of the invaded to 
paralyze him, as he would paralyze an animal by 
cutting his arteries or tendons. Accordingly, 
in all ages and in all lands, down to the nineteenth 



COLLAPSE OF CAPITALISTIC GOVERNMENT 15 

century, nations even partially centralized have, 
in their corporate capacity, owned and cared for 
their highways, either directly or through ac- 
countable agents. And they have paid for them 
by direct taxes, like the Romans, or by tolls levied 
upon traffic, as many mediaeval governments 
preferred to do. Either method answers its 
purpose, provided the government recognizes its 
responsibility ; and no government ever recognized 
this responsibility more fully than did the auto- 
cratic government of ancient Rome. So the 
absolute regime of eighteenth-century France 
recognized this responsibility when Louis XVI 
undertook to remedy the abuse of unequal taxa- 
tion, for the maintenance of the highways, by 
abolishing the corvee. 

Toward the middle of the nineteenth century, 
the application, by science, of steam to locomotion, 
made railways a favorite speculation. Forth- 
with, private capital acquired these highways, 
and because of the inelasticity of the old law, 
treated them as ordinary chattels, to be admin- 
istered for the profit of the owner exclusively. 
It is true that railway companies posed as public 
agents when demanding the power to take pri- 



l6 THE THEORY OF SOCIAL REVOLUTIONS 

vate property ; but when it came to charging for 
use of their ways, they claimed to be only private 
carriers, authorized to bargain as they pleased. 
Indeed, it grew to be considered a mark of efficient 
railroad management to extract the largest rev- 
enue possible from the people, along the lines 
of least resistance ; that is, by taxing most heavily 
those individuals and localities which could least 
resist. And the claim by the railroads that they 
might do this as a matter of right was long up- 
held by the courts,^ nor have the judges even 
yet, after a generation of revolt and of legislation, 
altogether abandoned this doctrine. 

The courts — reluctantly, it is true, and prin- 
cipally at the instigation of the railways them- 
selves, who found the practice unprofitable — 
have latterly discountenanced discrimination as 
to persons, but they still uphold discrimination 
as to localities.^ Now, among abuses of sover- 
eign power, this is one of the most galling, for of 
all taxes the transportation tax is perhaps that 

^ Fitchburg R. R. v. Gage, 12 Gray 393, and innumerable cases 
following it. 

2 See the decisions of the Commerce Court on the Long and Short- 
Haul Clause. Atchison, T. & S. F. Ry. v. United States, 191 Federal 
Rep. 856. 



COLLAPSE OF CAPITALISTIC GOVERNMENT 17 

which is most searching, most insidious, and, 
when misused, most destructive. The price paid 
for transportation is not so essential to the public 
welfare as its equality; for neither persons nor 
localities can prosper when the necessaries of life 
cost them more than they cost their competitors. 
In towns, no cup of water can be drunk, no crust 
of bread eaten, no garment worn, which has not 
paid the transportation tax, and the farmer's 
crops must rot upon his land, if other farmers 
pay enough less than he to exclude him from 
markets toward which they all stand in a position 
otherwise equal. Yet this formidable power has 
been usurped by private persons who have used 
it purely selfishly, as no legitimate sovereign 
could have used it, and by persons who have 
indignantly denounced all attempts to hold them 
accountable, as an infringement of their con- 
stitutional rights. Obviously, capital cannot as-' 
sume the position of an irresponsible sovereign,, 
living in a sphere beyond the domain of law, with- 
out inviting the fate which has awaited all sover- 
eigns who have denied or abused their trust. 

The operation of the New York Clearing-House 
is another example of the acquisition of sovereign 



l8 THE THEORY OF SOCIAL REVOLUTIONS 

power by irresponsible private persons. Pri- 
marily, of course, a clearing-house is an innocent 
institution occupied with adjusting balances be- 
tween banks, and has no relation to the volume 
of the currency. Furthermore, among all highly 
centralized nations, the regulation of the cur- 
rency is one of the most jealously guarded of the 
prerogatives of sovereignty, because all values 
hinge upon the relation which the volume of the 
currency bears to the volume of trade. Yet, as 
everybody knows, in moments of financial panic, 
the handful of financiers who, directly or in- 
directly, govern the Clearing-House, have it in 
their power either to expand or to contract the 
currency, by issuing or by withdrawing Clearing- 
House certificates, more effectually perhaps than 
if they controlled the Treasury of the United 
States. Nor does this power, vast as it is, at all 
represent the supremacy which a few bankers 
enjoy over values, because of their facilities for 
manipulating the currency and, with the cur- 
rency, credit ; facilities, which are used or abused 
entirely beyond the reach of the law. 

Bankers, at their conventions and through the 
press, are wont to denounce the American mone- 



COLLAPSE OF CAPITALISTIC GOVERNMENT 19 

tary system, and without doubt all that they say, 
and much more that they do not say, is true; 
and yet I should suppose that there could be 
little doubt that American financiers might, after 
the panic of 1893, and before the administration 
of Mr. Taft, have obtained from Congress, at 
most sessions, very reasonable legislation, had 
they first agreed upon the reforms they demanded, 
and, secondly, manifested their readiness, as a 
condition precedent to such reforms, to submit to 
effective government supervision in those depart- 
ments of their business which relate to the in- 
flation or depression of values. They have shown 
little inclination to submit to restraint in these 
particulars, nor, perhaps, is their reluctance sur- 
prising, for the possession by a very small favored 
class of the unquestioned privilege, whether 
actually used or not, at recurring intervals, of 
subjecting the debtor class to such pressure as the 
creditor may think necessary, in order to force 
the debtor to surrender his property to the 
creditor at the creditor's price, is a wonder 
beside which Aladdin's lamp burns dim. 

As I have already remarked, I apprehend that 
sovereignty is a variable quantity of administra- 



20 THE THEORY OF SOCIAL REVOLUTIONS 

tive energy, which, in civiHzations which we call 
advancing, tends to accumulate with a rapidity 
proportionate to the acceleration of movement. 
That is to say, the community, as it consolidates, 
finds it essential to its safety to withdraw, more 
or less completely, from individuals, and to 
monopolize, more or less strictly, itself, a great 
variety of functions. At one stage of civilization 
the head of the family administers justice, main- 
tains an armed force for war or police, wages war, 
makes treaties of peace, coins money, and, not 
infrequently, wears a crown, usually of a form to 
indicate his importance in a hierarchy. At a 
later stage of civilization, companies of traders 
play a great part. Such aggregations of private 
and irresponsible adventurers have invaded and 
conquered empires, founded colonies, and ad- 
ministered justice to millions of human beings. 
In our own time, we have seen the assumption of 
many of the functions of these and similar private 
companies by the sovereign. We have seen the 
East India Company absorbed by the British 
Parliament; we have seen the railways, and the 
telephone and the telegraph companies, taken 
into possession, very generally, by the most pro- 



COLLAPSE OF CAPITALISTIC GOVERNMENT 21 

gressive governments of the world ; and now we 
have come to the necessity of deahng with the 
domestic-trade monopoly, because trade has fallen 
into monopoly through the centralization of capi- 
tal in a constantly contracting circle of owner- 
ship. 

Among innumerable kinds of monopolies none 
have been more troublesome than trade monop- 
olies, especially those which control the price of 
the necessaries of life ; for, so far as I know, no 
people, approximately free, have long endured 
such monopolies patiently. Nor could they well 
have done so without constraint by overpowering 
physical force, for the possession of a monopoly 
of a necessary of life by an individual, or by a 
small privileged class, is tantamount to investing 
a minority, contemptible alike in numbers and 
in physical force, with an arbitrary and un- 
limited power to tax the majority, not for public, 
but for private purposes. Therefore it has not 
infrequently happened that persistence in ad- 
hering to and in enforcing such monopolies has 
led, first, to attempts at regulation, and, these 
failing, to confiscation, and sometimes to the 
proscription of the owners. An example of such 



22 THE THEORY OF SOCIAL REVOLUTIONS 

a phenomenon occurs to me which, just now, 
seems apposite. 

In the earher Middle Ages, before gunpowder 
made fortified houses untenable when attacked 
by the sovereign, the highways were so dangerous 
that trade arid manufactures could only survive 
in walled towns. An unarmed urban population 
had to buy its privileges, and to pay for these a 
syndicate grew up in each town, which became 
responsible for the town ferm, or tax, and, in 
return, collected what part of the municipal ex- 
penses it could from the poorer inhabitants. 
These syndicates, called guilds, as a means of 
raising money, regulated trade and fixed prices, 
and they succeeded in fixing prices because they 
could prevent competition within the walls. Pres- 
ently complaints became rife of guild oppression, 
and the courts had to entertain these complaints 
from the outset, to keep some semblance of order ; 
but at length the turmoil passed beyond the 
reach of the courts, and Parliament intervened. 
Parliament not only enacted a series of statutes 
regulating prices in towns, but supervised guild 
membership, requiring trading companies to re- 
ceive new members upon what Parliament con- 



COLLAPSE OF CAPITALISTIC GOVERNMENT 23 

sidered to be reasonable terms. Nevertheless, 
friction continued. 

With advances in science, artillery improved^ 
and, as artillery improved, the police strength- 
ened until the king could arrest whom he pleased. 
Then the country grew safe and manufactures 
migrated from the walled and heavily taxed towns 
to the cheap, open villages, and from thence 
undersold the guilds. As the area of competition 
broadened, so the guilds weakened, until, under 
Edward VI, being no longer able to defend them- 
selves, they were ruthlessly and savagely plun- 
dered; and fifty years later the Court of King's 
Bench gravely held that a royal grant of a mo- 
nopoly had always been bad at common law.^ 

Though the Court's law proved to be good, 
since it has stood, its history was fantastic; for 
the trade-guild was the offspring of trade mo- 
nopoly, and a trade monopoly had for centuries 
been granted habitually by the feudal landlord 
to his tenants, and indeed was the only means 
by which an urban population could finance its 
military expenditure. Then, in due course, the 
Crown tried to establish its exclusive right to 

^ Darcy v. Allein, 11 Rep. 84. 



24 



THE THEORY OF SOCIAL REVOLUTIONS 



grant monopolies, and finally Parliament — or 
King, Lords, and Commons combined, being the 
whole nation in its corporate capacity, — ap- 
propriated this monopoly of monopolies as its 
supreme prerogative. And with Parliament this 
monopoly has ever since remained. 

In fine, monopolies, or competition in trade, 
appear to be recurrent social phases which depend 
upon the ratio which the mass and the fluidity of 
capital, or, in other words, its energy, bears to 
the area within which competition is possible. 
In the Middle Ages, when the town walls bounded 
that area, or when, at most, it was restricted to a 
few lines of communication between defensible 
points garrisoned by the monopolists, — as were 
the Staple towns of England which carried on the 
wool trade with the British fortified counting- 
houses in Flanders, — a small quantity of slug- 
gish capital sufiiced. But as police improved, and 
the area of competition broadened faster than 
capital accumulated and quickened, the com- 
petitive phase dawned, whose advent is marked 
by Darcy v. AUein, decided in the year 1600. 
Finally, the issue between monopoly and free 
trade was fought out in the American Revolution, 



COLLAPSE OF CAPITALISTIC GOVERNMENT 25 

for the measure which precipitated hostilities 
was the effort of England to impose her monopoly 
of the Eastern trade upon America. The Boston 
Tea Party occurred on December i6, 1773. Then 
came the heyday of competition with the accept- 
ance of the theories of Adam Smith, and the 
political domination in England, towards 1840, 
of the Manchester school of political economy. 

About forty years since, in America at least, 
the tide would appear once more to have turned. 
I fix the moment of flux, as I am apt to do, by a 
lawsuit. This suit was the Morris Run Coal 
Company v. Barclay Coal Company,^ which is 
the first modern anti-monopoly litigation that I 
have met with in the United States. It was 
decided in Pennsylvania in 1871 ; and since 1871, 
while the area within which competition is possible 
has been kept constant by the tariff, capital has 
accumulated and has been concentrated and 
volatilized until, within this republic, substantially 
all prices are fixed by a vast moneyed mass. This 
mass, obeying what amounts to being a single 
volition, has its heart in Wall Street, and per- 
vades every corner of the Union. No matter 

1 68 Pa. 173. 



26 THE THEORY OF SOCIAL REVOLUTIONS 

what price is in question, whether it be the price 
of meat, or coal, or cotton cloth, or of railway 
transportation, or of insurance, or of discounts, 
the inquirer will find the price to be, in essence, 
a monopoly or fixed price; and if he will follow 
his investigation to the end, he will also find that 
the first cause in the complex chain of cause and 
effect which created the monopoly is that mys- 
terious energy which is enthroned on the Hudson. 
The presence of monopolistic prices in trade is 
not always a result of conscious agreement; 
more frequently, perhaps, it is automatic, and is 
an effect of the concentration of capital to a point 
where competition ceases, as when all the capital 
engaged in a trade belongs to a single owner. 
Supposing ownership to be enough restricted, com- 
bination is easier and more profitable than com- 
petition; therefore combination, conscious or 
unconscious, supplants competition. The infer- 
ence from the evidence is that, in the United 
States, capital has reached, or is rapidly reaching, 
this point of concentration; and if this be true, 
competition cannot be enforced by legislation. 
But, assuming that competition could still be 
enforced by law, the only effect would be to make 



COLLAPSE OF CAPITALISTIC GOVERNMEISIT 27 

the mass of capital more homogeneous by ehmi- 
nating still further such of the weaker capitalists 
as have survived. Ultimately, unless indeed 
society is to dissolve and capital migrate else- 
where, all the present phenomena would be in- 
tensified. Nor would free trade, probably, have 
more than a very transitory effect. In no depart- 
ment of trade is competition freer than in the 
Atlantic passenger service, and yet in no trade is 
there a stricter monopoly price. 

The same acceleration of the social movement 
which has caused this centralization of capital 
has caused the centralization of another form of 
human energy, which is its negative : labor unions 
organize labor as a monopoly. Labor protests 
against the irresponsible sovereignty of capital, 
as men have always protested against irresponsible 
sovereignty, declaring that the capitalistic social 
system, as it now exists, is a form of slavery. Very 
logically, therefore, the abler and bolder labor 
agitators proclaim that labor levies actual war 
against society, and that in that war there can 
be no truce until irresponsible capital has capitu- 
lated. Also, in labor's methods of warfare the 
same phenomena appear as in the autocracy of 



28 THE THEORY OF SOCIAL REVOLUTIONS 

capital. Labor attacks capitalistic society by 
methods beyond the purview of the law, and may, 
at any moment, shatter the social system ; while, 
under our laws and institutions, society is helpless. 
Few persons, I should imagine, who reflect on 
these phenomena, fail to admit to themselves, 
whatever they may say publicly, that present so- 
cial conditions are unsatisfactory, and I take the 
cause of the stress to be that which I have stated. 

,. We have extended the range of applied science 
until we daily use infinite forces, and those forces 
must, apparently, disrupt our society, unless we 
can raise the laws and institutions which hold 

. society together to an energy and efficiency com- 
mensurate to them. How much vigor and ability 
would be required to accomplish such a work may 
be measured by the experience of Washington, 
who barely prevailed in his relatively simple task, 
surrounded by a generation of extraordinary men, 
and with the capitalistic class of America behind 
him. Without the capitalistic class he must have 
failed. Therefore one most momentous problem 
of the future is the attitude which capital can or 
will assume in this emergency. 

That some of the more sagacious of the capital- 



COLLAPSE OF CAPITALISTIC GOVERNMENT 29 

istic class have preserved that instinct of self- 
preservation which was so conspicuous among 
men of the type of Washington, is apparent from 
the position taken by the management of the 
United States Steel Company, and by the Repub- 
lican minority of the Congressional Committee 
which recently investigated the Steel Company; 
but whether such men very strongly influence 
the genus to which they belong is not clear. If 
they do not, much improvement in existing con- 
ditions can hardly be anticipated. 

If capital insists upon continuing to exercise 
sovereign powers, without accepting responsibility 
as for a trust, the revolt against the existing order 
must probably continue, and that revolt can only 
be dealt with, as all servile revolts must be dealt 
with, by physical force. I doubt, however, if 
even the most ardent and optimistic of capitalists 
would care to speculate deeply upon the stability 
of any government capital might organize, which 
rested on the fundamental principle that the 
American people must be ruled by an army. On 
the other hand any government to be effective 
must be strong. It is futile to talk of keeping 
peace in labor disputes by compulsory arbitration, 



30 THE THEORY OF SOCIAL REVOLUTIONS 

if the government has not the power to command 
obedience to its arbitrators' decree ; but a govern- 
ment able to constrain a couple of hundred thou- 
sand discontented railway employees to work 
against their will, must differ considerably from 
the one we have. Nor is it possible to imagine 
that labor will ever yield peaceful obedience to 
such constraint, unless capital makes equivalent 
concessions, — unless, perhaps, among other 
things, capital consents to erect tribunals which 
shall offer relief to any citizen who can show him- 
self to be oppressed "by the monopolistic price. 
In fine, a government, to promise stability in the 
future, must apparently be so much more powerful 
than any private interest, that all men will stand 
equally before its tribunals; and these tribunals 
must be flexible enough to reach those categories 
of activity which now lie beyond legal jurisdiction. 
If it be objected that the American people are 
incapable of an effort so prodigious, I readily ad- 
mit that this may be true, but I also contend that 
the objection is beside the issue. What the 
American people can or cannot do is a matter of 
opinion, but that social changes are imminent 
appears to be almost certain. Though these 



COLLAPSE OF CAPITALISTIC GOVERNMENT 31 

changes cannot be prevented, possibly they may, 
to a degree, be guided, as Washington guided the 
changes of 1789. To resist them perversely, as 
they were resisted at the Chicago Convention of 
191 2, can only make the catastrophe, when it 
comes, as overwhelming as was the consequent 
defeat of the Republican party. 

Approached thus, that Convention of 191 2 has 
more than a passing importance, since it would 
seem to indicate the ordinary phenomenon, that 
a declining favored class is incapable of appre- 
ciating an approaching change of environment 
which must alter its social status. I began with 
the proposition that, in any society which we 
now understand, civilization is equivalent to 
order, and the evidence of the truth of the prop- 
osition is, that amidst disorder, capital and 
credit, which constitute the pith of our civiliza- 
tion, perish first. For more than a century past, 
capital and credit have been absolute, or nearly 
so ; accordingly it has not been the martial type 
which has enjoyed sovereignty, but the capitalistic. 
The warrior has been the capitalists' servant. 
But now, if it be true that money, in certain 
crucial directions, is losing its purchasing power, 



32 



THE THEORY OF SOCIAL REVOLUTIONS 



it is evident that capitalists must accept a posi- 
tion of equality before the law under the domina- 
tion of a type of man who can enforce obedience ; 
their own obedience, as well as the obedience of 
others. Indeed, it might occur, even to some 
optimists, that capitalists would be fortunate if 
they could certainly obtain protection for another 
fifty years on terms as favorable as these. But at 
Chicago, capitalists declined even to consider 
receding to a secondary position. Rather than 
permit the advent of a power beyond their im- 
mediate control, they preferred to shatter the 
instrument by which they sustained their ascend- 
ancy. For it is clear that Roosevelt's offence in 
the eyes of the capitalistic class was not what he 
had actually done, for he had done nothing se- 
riously to injure them. The crime they resented 
was the assertion of the principle of equality before 
the law, for equality before the law signified the 
end of privilege to operate beyond the range of 
law. If this principle which Roosevelt, in theory 
at least, certainly embodied, came to be rigorously 
enforced, capitalists perceived that private persons 
would be precluded from using the functions of 
sovereignty to enrich themselves. There lay the 



COLLAPSE OF CAPITALISTIC GOVERNMENT 33 

parting of the ways. Sooner or later almost 
every successive ruling class has had this dilemma 
in one of its innumerable forms presented to them, 
and few have had the genius to compromise while 
compromise was possible. Only a generation ago 
the aristocracy of the South deliberately chose a 
civil war rather than admit the principle that at 
some future day they might have to accept com- 
pensation for their slaves. 

• A thousand other instances of similar incapacity 
might be adduced, but I will content myself 
with this alone. 

Briefly the precedents induce the inference 
that privileged classes seldom have the intelligence 
to protect themselves by adaptation when nature 
turns against them, and, up to the present moment, 
the old privileged class in the United States has 
shown little promise of being an exception to the 
rule. 

Be this, however, as it may, and even assum- 
ing that the great industrial and capitalistic 
interests would be prepared to assist a move- 
ment toward consolidation, as their ances- 
tors assisted Washington, I deem it far from 
probable that they could succeed with the large 



34 THE THEORY OF SOCIAL REVOLUTIONS 

American middle class, which naturally should 
aid, opposed, as it seems now to be, to such a 
movement. Partially, doubtless, this opposition 
is born of fear, since the lesser folk have learned 
by bitter experience that the powerful have 
yielded to nothing save force, and therefore that 
their only hope is to crush those who oppress 
them. Doubtless, also, there is the inertia incident 
to long tradition, but I suspect that the resistance 
is rather due to a subtle and, as yet, nearly un- 
conscious instinct, which teaches the numerical 
majority, who are inimical to capital, that the 
shortest and easiest way for them to acquire 
autocratic authority is to obtain an absolute 
mastery over those political tribunals which we 
call courts. Also that mastery is being by them 
rapidly acquired. So long as our courts retain 
their present functions no comprehensive admin- 
istrative reform is possible, whence I conclude 
that the relation which our courts shall hold to 
politics is now the fundamental problem which 
the American people must solve, before any stable 
social equilibrium can be attained. 

Theodore Roosevelt's enemies have been many 
and bitter. They have attacked his honesty, his 



COLLAPSE OF CAPITALISTIC GOVERNMENT 35 

sobriety, his intelligence, and his judgment, but 
very few of them have hitherto denied that he has 
a keen instinct for political strife. Only of late 
has this gift been doubted, but now eminent 
politicians question whether he did not make a 
capital mistake when he presented the reform of 
our courts of law, as expounders of the Constitu- 
tion, as one of his two chief issues, in his canvass 
for a nomination for a third presidential term. 

After many years of study of, and reflection upon, 
this intricate subject I have reached the conviction 
that, though Mr. Roosevelt may have erred in the 
remedy which he has suggested, he is right in the 
principle which he has advanced, and in my next 
chapter I propose to give the evidence and explain 
the reasons which constrain me to believe that 
American society must continue to degenerate 
until confusion supervenes, if our courts shall re- 
main semipolitical chambers. 



CHAPTER II 

THE LIMITATIONS OF THE JUDICIAL FUNCTION 

Taking the human race collectively^, its ideal of 
a court of justice has been the omniscient and in- 
exorable judgment seat of God. Individually, 
on the contrary, they have dearly loved favor. 
Hence the doctrine of the Intercession of the 
Saints, which many devout persons have sincerely 
believed could be bought by them for money. 
The whole development of civilization may be 
followed in the oscillation of any given society 
between these two extremes, the many always 
striving to so restrain the judiciary that it shall 
be unable to work the will of the favored few. 
On the whole, success in attaining to ideal justice 
has not been quite commensurate with the time 
and effort devoted to solving the problem, but, 
until our constitutional experiment was tried in 
America, I think it had been pretty generally 
admitted that the first prerequisite to success 
was that judges should be removed from political 

36 



LIMITATIONS OF THE JUDICIAL FUNCTION 37 

influences. For the main difficulty has been that 
every dominant class, as-iflias arisen, has done its 
best to use the naoCliinery of justice for its own 
benefit. ^^ 

No argument ever has convinced like a parable, 
and a very famous story in the Bible will illustrate 
the great truth, which is the first lesson that a 
primitive people learns, that unless the judge can 
be separated from the sovereign, and be strictly 
limited in the performance of his functions by a 
recognized code of procedure, the public, as against 
the dominant class, has, in substance, no civil 
rights. The kings of Israel were judges of last 
resort. Solomon earned his reputation for wis- 
dom in the cause in which two mothers claimed 
the same child. They were indeed both judge and 
jury. Also they were prosecuting officers. Also 
they were sheriffs. In fine they exercised un- 
limited judicial power, save in so far as they were 
checked by the divine interference usually signi- 
fied through some prophet. 

Now David was, admittedly, one of the best 
sovereigns and judges who ever held office in 
Jerusalem, and, in the days of David, Nathan was 
the leading prophet of the dominant political party. 



38 THE THEORY OF SOCIAL REVOLUTIONS 

"And it came to pass in an eveningtide, that 
David arose from off his bed, and walked upon the 
roof of the king's house : and from the roof he saw 
a woman washing herself; and the woman was 
very beautiful to look upon. And David sent 
and enquired after the woman. And one said, 
Is not this Bath-sheba, the daughter of Eliam, 
the wife of Uriah the Hittite? And David sent 
messengers, and took her ; and she came in unto 
him, and he lay with her ; . . . and she returned 
unto her house." 

Uriah was serving in the army under Joab. 
David sent for Uriah, and told him to go home to 
his wife, but Uriah refused. Then David wrote 
a letter to Joab and dismissed Uriah, ordering him 
to give the letter to Joab. And David "wrote 
in the letter, saying. Set ye Uriah in the forefront 
of the hottest battle, and retire ye from him, that 
he may be smitten and die. . . . 

"And the men of the city went out and fought 
with Joab ; and there fell some of the people of 
the servants of David; and Uriah the Hittite 
died also. . . . But the thing that David had 
done displeased the Lord. 

"And the Lord sent Nathan unto David. And 



LIMITATIONS OF THE JUDICIAL FUNCTION 39 

he came unto him, and said unto him, There 
were two men in one city; the one rich and the 
other poor. The rich man had exceeding many 
flocks and herds : 

"But the poor man had nothing, save one little 
ewe lamb, which he had bought and nourished up : 
and it grew up together with him, and with his 
children ; it did eat of his own meat and drank 
of his own cup, and lay in his bosom, and was 
unto him as a daughter. 

"And there came a traveller unto the rich man, 
and he spared to take of his own flock, . . . but 
took the poor man's lamb, and dressed it for the 
man that was come to him. 

"And David's anger was greatly kindled against 
the man ; and he said to Nathan, As the Lord 
liveth, the man that hath done this thing shall 
surely die : . . . 

"And Nathan said to David, Thou art the man. 
Thus saith the Lord God of Israel. . . . Now 
therefore the sword shall never depart from 
thine house ; because thou has despised me. . . . 
Behold, I will raise up evil against thee out of 
thine own house, and I will take thy wives before 
thine eyes, and give them unto thy neighbor." 



40 THE THEORY OF SOCIAL REVOLUTIONS 

Here, as the heading to the Twelfth Chapter of 
Second Book of Samuel says, "Nathan's parable 
of the ewe lamb causeth David to be his own 
judge," but the significant part of the story is 
that Nathan, with all his influence, could not force 
David to surrender his prey. David begged very 
hard to have his sentence remitted, but, for all 
that, "David sent and fetched [Bathsheba] to his 
house, and she became his wife, and bare him a 
son." Indeed, she bore him Solomon. As against 
David or David's important supporters men like 
Uriah had no civil rights that could be enforced. 

Even after the judicial function is nominally 
severed from the executive function, so that the 
sovereign himself does not, like David and Solo- 
mon, personally administer justice, the same 
result is reached through agents, as long as the 
judge holds his office at the will of the chief of a 
political party. 

To go no farther afield, every page of EngHsh 
history blazons this record. Long after the law 
had taken an almost modern shape, Alice Ferrers, 
the mistress of Edward III, sat on the bench at 
Westminster and intimidated the judges into 
deciding for suitors who had secured her services. 



LIMITATIONS OF THE JUDICIAL FUNCTION 41 

The chief revenue of the rival factions during the 
War of the Roses was derived from attainders, 
indictments for treason, and forfeitures, avowedly 
partisan. Henry VII used the Star Chamber to 
ruin the remnants of the feudal aristocracy. 
Henry VIII exterminated as vagrants the wretched 
monks whom he had evicted. The prosecu- 
tions under Charles I largely induced the Great 
Rebellion; and finally the limit of endurance was 
reached when Charles II made Jeffreys Chief 
Justice of England in order to kill those who 
were prominent in opposition. Charles knew 
what he was doing. "That man," said he of 
Jeffreys, "has no learning, no sense, no manners, 
and more impudence than ten carted street- 
walkers." The first object was to convict Al- 
gernon Sidney of treason. Jeffreys used simple 
means. Usually drunk, his court resembled the 
den of a wild beast. He poured forth on "plaintiffs 
and defendants, barristers and attorneys, wit- 
nesses and jurymen, torrents of frantic abuse, 
intermixed with oaths and curses." The law 
required proof of an overt act of treason. Many 
years before Sidney had written a philosophical 
treatise touching resistance by the subject 



42 THE THEORY OF SOCIAL REVOLUTIONS 

to the sovereign, as a constitutional principle. 
But, though the fragment contained nothing 
more than the doctrines of Locke, Sidney had 
cautiously shown it to no one, and it had only 
been found by searching his study. Jeffreys told 
the jury that if they believed the book to be 
Sidney's book, written by him, they must convict 
for scribere est agere, to write is to commit an overt 
act. 

A revolution followed upon this and other 
like convictions, as revolutions have usually fol- 
lowed such uses of the judicial power. In that 
revolution the principle of the limitation of the 
judicial function was recognized, and the English 
people seriously addressed themselves to the 
task of separating their courts from political 
influences, of protecting their judges by making 
their tenure and their pay permanent, and of 
punishing them by removal if they behaved 
corruptly, or with prejudice, or transcended the 
limits within which their duty confined them. 
Jeffreys had legislated when he ruled it to be the 
law that, to write words secretly in one's closet, 
is to commit an overt act of treason, and he did 
it to kill a man whom the king who employed 



* LIMITATIONS OF THE JUDICIAL FUNCTION 43 

him wished to destroy. This was to transcend 
the duty of a judge, which is to expound and not 
to legislate. The judge may develop a principle, 
he may admit evidence of a custom in order to 
explain the intentions of the parties to a suit, as 
Lord Mansfield admitted evidence of the customs 
of merchants, but he should not legislate. To do 
so, as Jeffreys did in Sidney's case, is tantamount 
to murder. Jeffreys never was duly punished 
for his crimes. He died the year after the Revolu- 
tion, in the Tower, maintaining to the last that he 
was innocent in the sight of God and man because 
"all the blood he had shed fell short of the King's 
command." 

And Jeffreys was perfectly logical and con- 
sistent in his attitude. A judiciary is either an 
end in itself or a means to an end. If it be designed 
to protect the civil rights of citizens indifferently, 
it must be free from pressure which will deflect 
it from this path, and it can only be protected 
from the severest possible pressure by being re- 
moved from politics, because politics is the struggle 
for ascendancy of a class or a majority. If, on the 
other hand, the judiciary is to serve as an instru- 
ment for advancing the fortunes of a majority or a 



44 THE THEORY OF SOCIAL REVOLUTIONS 

dominant class, as David used the Jewish judi- 
ciary, or as the Stuarts used the Enghsh judiciary, 
then the judicial power must be embodied either 
in a military or political leader, like David, who 
does the work himself, or in an agent, more or 
less like Jeffreys, who will obey his orders. In 
the colonies the subserviency of the judges to 
the Crown had been a standing grievance, and 
the result of this long and terrible experience, 
stretching through centuries both in Europe and 
America, had been to inspire Americans with a fear 
of intrusting power to any man or body of men. 
They sought to limit everything by written restric- 
tions. Setting aside the objection that such a 
system is mechanically vicious because it involves 
excessive friction and therefore waste of energy, 
it is obviously futile unless the written restrictions 
can be enforced, and enforced in the spirit in which 
they are drawn. Hamilton, whose instinct for 
law resembled genius, saw the difficulty and 
pointed out in the Federalist that it is not a writing 
which can give protection, but only the intelligence 
and the sense of justice of the community itself. 

"The truth is, that the general genius of a 
Government is all that can be substantially relied 



LIMITATIONS OF THE JUDICIAL FUNCTION 45 

upon for permanent effects. Particular pro- 
visions, though not altogether useless, have far 
less virtue and efficiency than are commonly 
ascribed to them; and the want of them will 
never be, with men of sound discernment, a decisive 
objection to any plan which exhibits the leading 
characters of a good Government." After an 
experience of nearly a century and a quarter we 
must admit, I think, that Hamilton was right. 
In the United States we have carried bills of 
right and constitutional limitations to an extreme, 
and yet, I suppose that few would care to main- 
tain that, during the nineteenth century, life and 
property were safer in America, or crime better 
dealt with, than in England, France, or Germany. 
The contrary, indeed, I take to be the truth, and 
I think one chief cause of this imperfection in 
the administration of justice will be found to 
have been the operation of the written Constitu- 
tion. For, under the American system, the Con- 
stitution, or fundamental law, is expounded by 
judges, and this function, which, in essence, is 
political, has brought precisely that quality of 
pressure on the bench which it has been the labor 
of a hundred generations of our ancestors to re- 



46 THE THEORY OF SOCL\L REVOLUTIONS 

move. On the whole the result has been not to 
elevate poHtics, but to lower the courts toward 
the poHtical level, a result which conforms to 
the a priori theory. 

The abstract vhrtue of the written Constitution 
was not, however, a question in issue when 
Washington and his contemporaries set themselves 
to reorganize the Confederation. Those men had 
no choice but to draft some kind of a platform 
on which the states could agree to imite, if they 
were to unite peacefully at all, and accordingly 
they met in convention and drew the best form of 
agreement they could ; but I more than suspect 
that a good many very able FederaHsts were quite 
aHve to the defects in the plan which they adopted. 

Hamilton was outspoken in preferring the Eng- 
lish model, and I am not aware that Washington 
ever expressed a preference for the theory that, 
because of a written fundamental law, the court 
should nullify legislation. Nor is it unworthy of 
remark that aU foreigners, after a prolonged and 
attentive observation of our experiment, have 
avoided it. Since 1789, every highly civiHzed 
Western people have readjusted their institutions 
at least once, yet not one has in this respect 



LIMITATIONS OF THE JUDICIAL FUNCTION 47 

imitated us, though all have borrowed freely 
from the parliamentary system of England.^ 

Even our neighbor, Canada, with no adverse 
traditions and a population similar to ours, has 
been no exception to the rule. The Canadian 
courts indeed define the limits of provincial and 
federal jurisdiction as fixed under an act of Parlia- 
ment, but they do not pretend to limit the exercise 
of power when the seat of power has been estab- 
lished. I take the cause of this distrust to be 
obvious. Although our written Constitution was 
successful in its primary purpose of facilitating 
the consolidation of the Confederation, it has not 
otherwise inspired confidence as a practical ad- 
ministrative device. Not only has constant judi- 
cial interference dislocated scientific legislation, 
but casting the judiciary into the vortex of civil 
faction has degraded it in the popular esteem. 
In fine, from the outset, the American bench, 
because it deals with the most fiercely contested 
of political issues, has been an instrument neces- 
sary to political success. Consequently, political 

^ The, relation of courts to legislation in European countries has 
been pretty fully considered by Brinton Coxe, injudicial Power and 
Constitutional Legislation. 



48 THE THEORY OF SOCIAL REVOLUTIONS 

parties have striven to control it, and therefore 
the bench has always had an avowed partisan 
bias. This avowed political or social bias 
has, I infer, bred among the American people 
the conviction that justice is not administered 
indifferently to all men, wherefore the bench is 
not respected with us as, for instance, it is in Great 
Britain, where law and politics are sundered. 
Nor has the dissatisfaction engendered by these 
causes been concealed. On the contrary, it has 
found expression through a series of famous 
popular leaders from Thomas Jefferson to Theo- 
dore Roosevelt. 

The Constitution could hardly have been 
adopted or the government organized but for 
the personal influence of Washington, whose power 
lay in his genius for dealing with men. He 
lost no time or strength in speculation, but, 
taking the Constitution as the best implement at 
hand, he went to the work of administration by 
including the representatives of the antagonistic 
extremes in his Cabinet. He might as well have 
expected fire and water to mingle as Jefferson and 
Hamilton to harmonize. Probably he had no 
delusions on that head when he chose them 



LIMITATIONS OF THE JUDICIAL FUNCTION 49 

for his ministers, and he accomplished his object. 
He paralyzed opposition until the new mechanism 
began to operate pretty regularly, but he had not 
an hour to spare. Soon the French Revolution 
heated passions so hot that long before Washing- 
ton's successor was elected the United States was 
rent by faction. 

The question which underlay all other questions, 
down to the Civil War, was the determination 
of the seat of sovereignty. Hamilton and the 
Federalists held it to be axiomatic that, if the 
federal government were to be more than a 
shadow, it must interpret the meaning of the 
instrument which created it, and, if so, that it 
must signify its decisions through the courts. 
Only in this way, they argued, could written 
limitations on legislative power be made effective. 
Only in this way could statutes which contravened 
the Constitution be set aside.^ 

Jefferson was abroad when Hamilton wrote 
The Federalist, but his views have since been so 
universally accepted as embodying the opposition 
to Hamilton, that they may be conveniently taken 
as if they had been published while the Constitu- 

1 Federalist, No. LXXVIII. 



50 THE THEORY OF SOCIAL REVOLUTIONS 

tion was under discussion. Substantially the 
same arguments were advanced by others during 
the actual debate, if not quite so lucidly or con- 
nectedly then, as afterward by him. 

Very well, said Jefferson, in answer to Hamilton, 
admitting, for the moment, that the central gov- 
ernment shall define its own powers, and that 
the courts shall be the organ through which the 
exposition shall be made, both of which proposi- 
tions I vehemently deny, you have this result : 
The judges who will be called upon to pass upon 
the validity of national and state legislation will be 
plunged in the most heated of controversies, and 
in those controversies they cannot fail to be in- 
fluenced by the same passions and prejudices 
which sway other men. In a word they must 
decide like legislators, though they will be exempt 
from the responsibility to the public which con- 
trols other legislators. Such conditions you can 
only meet by making the judicial tenure of office 
ephemeral, as all legislative tenure is ephemeral. 

It is vain to pretend, continued he, in support ^^ 
of fixity of tenure, that the greater the pressure on 
the judge is likely to be, the more need there 
is to make him secure. This may be true of 



LIMITATIONS OF THE JUDICIAL FUNCTION 51 

judges clothed with ordinary attributes, like 
English judges, for, should these try to nullify 
the popular will by construing away statutes, 
Parliament can instantly correct them, or if 
Parliament fail in its duty, the constituencies, 
at the next election, can intervene. But no one 
will be able to correct the American judge who 
may decline to recognize the law which would 
constrain him. Nothing can shake him save 
impeachment for what is tantamount to crime, 
or being overruled by a constitutional amend- 
ment which you have purposely made too hard 
to obtain to be a remedy. He is to be judge 
in his own case without an appeal. 

Nowhere in all his long and masterly defence 
of the Constitution did Hamilton show so much 
embarrassment as here, and because, probably, 
he did not himself believe in his own brief. He 
really had faith in the English principle of an 
absolute parliament, restrained, if needful, b> 
a conservative chamber, like the House of Lords, 
but not in the total suspension of sovereignty 
subject to judicial illumination. Consequent! v 
he fell back on platitudes about judicial high 
mindedness, and how judges could be trusted 



52 ' THE THEORY OF SOCIAL REVOLUTIONS 

not to allow political influences to weigh with them 
when deciding political questions. Pushed to its 
logical end, concluded he, the Jeffersonian argu- 
ment would prove that there should be no judges 
distinct from legislatures.^ 

Now, at length, exclaimed the Jeffersonian in 
triumph, you admit our thesis. You propose to 
clothe judges with the highest legislative functions, 
since you give them an absolute negative on legis- 
lation, and yet you decline to impose on them the 
responsibility to a constituency, which constrains 
other legislators. Clearly you thus make them 
autocratic, and in the worst sense, for you permit 
small bodies of irresponsibile men under pretence 
of dispensing justice, but really in a spirit of hy- 
pocrisy, to annul the will of the majority of the 
people, even though the right of the people to 
exercise their will, in the matters at issue, be 
clearly granted them in the Constitution. 

No, rejoined Hamilton, thus driven to the wall, 
judges never will so abuse their trust. The duty 
of the judge requires him to suppress his will, 
and exercise his judgment only. The Constitution 
will be before him, and he will have only to say 

1 The Federalist, No. LXXVIII. 



LIMITATIONS OF THE JUDICIAL FUNCTION 53 

whether authority to legislate on a given subject 
is granted in that instrument. If it be, the 
character of the legislation must remain a matter 
of legislative discretion. Besides, you must re- 
pose confidence somewhere, and judges, on the 
whole, are more trustworthy than legislators. 
How can you say that, retorted the opposition, 
when you, better than most men, know the line 
of despotic legal precedents from the Ship Money 
down to the Writs of Assistance ? 

Looking back upon this initial controversy 
touching judicial functions under the Constitution, 
we can hardly suppose that Hamilton did not per- 
ceive that, in substance, Jefferson was right, and 
that a bench purposely constructed to pass upon 
political questions must be politically partisan. 
He knew very well that, if the Federalists prevailed 
in the elections, a Federalist President would 
only appoint magistrates who could be relied on 
to favor consolidation. And so the event proved. 
General Washington chose John Jay for the first 
Chief Justice, who in some important respects was 
more Federalist than Hamilton, while John 
Adams selected John Marshall, who, though one 
of the greatest jurists who ever lived, was hated 



54 THE THEORY OF SOCIAL REVOLUTIONS 

by Jefferson with a bitter hatred, because of his 
political bias. As time went on matters grew 
worse. Before Marshall died slavery had become 
a burning issue, and the slave-owners controlled 
the appointing power. General Jackson appointed 
Taney to sustain the expansion of slavery, and 
when the anti-slavery party carried the country 
with Lincoln, Lincoln supplanted Taney with 
Chase, in order that Chase might stand by him 
in his struggle to destroy slavery. And as it has 
been, so must it always be. As long as the 
power to enact laws shall hinge on the complexion 
of benches of judges, so long will the ability to 
control a majority of the bench be as crucial 
a political necessity as the ability to control a 
majority in avowedly representative assemblies. 

Hamilton was one of the few great jurists and 
administrators whom America has ever produced, 
and it is inconceivable that he did not understand 
what he was doing. He knew perfectly well that, 
other things being equal, the simplest adminis- 
trative mechanism is the best, and he knew also 
that he was helping to make an extremely compli- 
cated mechanism. Not only so, but at the heart 
of this complexity lay the gigantic cog of the 



LIMITATIONS OF THE JUDICIAL FUNCTION 55 

judiciary, which was obviously devised to stop 
movement. He must have had a reason, beyond 
the reason he gave, for not only insisting on cloth- 
ing the judiciary with these unusual political 
and legislative attributes, but for giving the 
judiciary an unprecedented fixity of tenure. I 
suspect that he was actuated by some such con- 
siderations as these : 

The Federalists, having pretty good cause to 
suppose themselves in a popular minority, pur- 
posed to consolidate the thirteen states under a 
new sovereign. There were but two methods by 
which they could prevail ; they could use force, 
or, to secure assent, they could propose some 
system of arbitration. To escape war the Fed- 
eralists convened the constitutional convention, 
and by so doing pledged themselves to arbitra- 
tion. But if their plan of consolidation were to 
succeed, it was plain that the arbitrator must 
arbitrate in their favor, for if he arbitrated as 
Mr. Jefferson would have wished, the United 
States under the Constitution would have differed 
little from the United States under the Confedera- 
tion. The Federalists, therefore, must control 
the arbitrator. If the Constitution were to be 



56 THE THEORY OF SOCIAL REVOLUTIONS 

adopted, Hamilton and every one else knew that 
Washington would be the first President, and 
Washington could be relied on to appoint a 
strong Federalist bench. Hence, whatever might 
happen subsequently, when the new plan first 
should go into operation, and when the danger 
from insubordination among the states would 
probably be most acute, the judiciary would be 
made to throw its weight in favor of consolidation, 
and against disintegration, and, if it did so, it 
was essential that it should be protected against 
anything short of a revolutionary attack. 

In the convention, indeed, Charles Pinckney of 
South Carolina suggested that Congress should 
be empowered to negative state legislation, but 
such an alternative, for obvious reasons, would 
have been less palatable to Hamilton, since 
Congress would be only too likely to fall under the 
control of the Jeffersonian party, while a bench of 
judges, if once well chosen, might prove to be for 
many years an "excellent barrier to the encroach- 
ments and oppressions of the representative body." ^ 

I infer that Hamilton and many other Federalists 
reasoned somewhat thus, not only from what 

1 The Federalist, No. LXXVIII. 



LIMITATIONS OF THE JUDICIAL FUNCTION 57 

they wrote, but from the temper of their minds, 
and, if they did, events largely justified them. 
John Jay, Oliver Ellsworth, and John Marshall 
were successively appointed to the office of Chief 
Justice, nor did the complexion of the Supreme 
Court change until after 1830. 

What interests us, however, is not so much what 
the Federalists thought, or the motives which 
actuated them, as the effect which the clothing of 
the judiciary with political functions has had 
upon the development of the American republic, 
more especially as that extreme measure might 
have been avoided, had Pinckney's plan been 
adopted. Nor, looking back upon the actual 
course of events, can I perceive that, so far as the 
movement toward consolidation was concerned, 
the final result would have varied materially 
whether Congress or the Supreme Court had 
exercised control over state legislation. Marshall 
might just as well, in the one case as the other, 
have formulated his theory of a semi-centralized 
administration. He would only have had uni- 
formly to sustain Congress, as an English judge 
sustains Parliament. Nor could either Congress 
or the Court have reached a definite result with- 



58 THE THEORY OF SOCIAL REVOLUTIONS 

out an appeal to force. Either chamber might 
expound a theory, but nothing save an army- 
could establish it. 

For two generations statesmen and jurists 
debated the relation of the central to the local 
sovereignties with no result, for words alone 
could decide no such issue. In America, as else- 
where, sovereignty is determined by physical 
force. Marshall could not conquer Jefferson, 
he could at most controvert Jefferson's theory. 
This he did, but, in doing so, I doubt if he were 
quite true to himself. Jefferson contended that 
every state might nullify national legislation, as 
conversely Pinckney wished Congress to be given 
explicitly the power to nullify state legislation; 
and Marshall, very sensibly, pointed out that, 
were Jefferson's claim carried into practice, it 
would create " a hydra in government," ^ yet I 
am confident that Marshall did not appreciate 
whither his own assertion of authority must 
lead. In view of the victory of centralization in 
the Civil War, I will agree that the Supreme 
Court might have successfully maintained a 
position as arbitrator touching conflicting juris- 

1 Cohens v. Virginia, 6 Wheaton 415. 



LIMITATIONS OF THE JUDICIAL FUNCTION 59 

dictions, as between the nation and the states, 
but that is a different matter from assuming to 
examine into the wisdom of the legislation itself. 
The one function might, possibly, pass by courtesy 
as judicial; the other is clearly legislative. 

This distinction only developed after Marshall's 
death, but the resentment which impelled Mar- 
shall to annul an act of Congress was roused by 
the political conflict which preceded the election 
of 1800, in which Marshall took a chief part. 
Apparently he could not resist the temptation 
of measuring himself with his old adversary, 
especially as he seems to have thought that he 
could discredit that adversary without giving 
him an opportunity to retaliate. 

In 1798 a Federalist Congress passed the Alien 
and Sedition Acts, whose constitutionality no 
Federalist judge ever doubted, but which Jefferson 
considered as clearly a violation of the fundamental 
compact, since they tended to drive certain 
states, as he thought, into "revolution and blood." 
Under this provocation Jefferson proclaimed that 
it was both the right and the duty of any state, 
which felt itself aggrieved, to intervene to arrest 
^'the progress of the evil," within her territory, 



6o THE THEORY OF SOCIAL REVOLUTIONS 

by declining to execute, or by "nullifying, "the 
objectionable statutes. As Jefferson wrote the 
Kentucky Resolutions in 1798 and was elected 
President in 1800, the people at least appeared 
to have sustained him in his exposition of the 
Constitution, before he entered into office. 

At this distance of time we find it hard to reahze 
what the election of 1800 seemed to portend to 
those who participated therein. Mr. Jefferson 
always described it as amounting to a revolution 
as profound as, if less bloody than, the revolution 
of 1776, and though we may be disposed to imagine 
that Jefferson valued his own advent to power at 
its full worth, it must be admitted that his enemies 
regarded it almost as seriously. Nor were they 
without some justification, for Jefferson certainly 
represented the party of disintegration. "Nulli- 
fication" would have been tantamount to a re- 
turn to the condition of the Confederation. 
Besides, Jefferson not so many years before had 
written, in defence of Shays's rebellion, that the 
tree of Liberty could never flourish unless re- 
freshed occasionally with the blood of patriots 
and tyrants. To most Federahsts Jefferson 
seemed a bloodthirsty demagogue. 



LIMITATIONS OF THE JUDICIAL FUNCTION 6 1 

In 1796 Oliver Ellsworth had been appointed 
Chief Justice by General Washington in the place 
of Jay, who resigned, and in 1799 John Adams 
sent Ellsworth as an envoy to France to try to 
negotiate a treaty which should reestablish peace 
between the two countries. Ellsworth succeeded 
in his mission, but the hardships of his journey 
injured his health, and he, in turn, resigned in 
the autumn of 1800. Then Adams offered the 
Chief Justiceship to Jay, but Jay would not return 
to office, and after this the President selected his 
Secretary of State, John Marshall, one of the 
greatest of the great Virginians, but one of Jef- 
ferson's most irreconcilable enemies. Perhaps at 
no moment in his life did John Adams demon- 
strate his legal genius more convincingly than 
in this remarkable nomination. Yet it must be 
conceded that, in making John Marshall Chief 
Justice, John Adams deliberately chose the man 
whom, of all his countrymen, he thought to be 
the most formidable champion of those views 
which he himself entertained, and which he con- 
ceived that he had been elected President to ad- 
vance. Nor was John Adams deceived. For 
thirty-four years John Marshall labored ceaselessly 



62 THE THEORY OF SOCIAL REVOLUTIONS 

to counteract Jefferson's constitutional prin- 
ciples, while Jefferson always denounced the 
political partiality of the federal courts, and above 
all the "rancorous hatred which Marshall bears 
to the government of his country, and . . . the 
cunning and sophistry within which he is able to 
enshroud himself. " ^ 

No one, at this day, would be disposed to dispute 
that the Constitution, as a device to postpone 
war among the states, at least for a period, was 
successful, and that, as I have already pointed out, 
during the tentative interval which extended 
until Appomattox, the Supreme Court served 
perhaps as well, in ordinary times, as an arbiter 
between the states and the general government, 
as any which could have been suggested. So 
much may be conceded, and yet it remains true, as 
the record will show, that when it passed this 
point and entered into factional strife, the Supreme 
Court somewhat lamentably failed, probably in- 
juring itself and popular respect for law, far more 
by its errors, than it aided the Union by its political 
adjudications. 

Although John Marshall, by common consent, 

^To Madison, Ford, 9, 275. 



LIMITATIONS OF THE JUDICIAL FUNCTION 63 

ranks as one of the greatest and purest of Ameri- 
cans, yet even Marshall had human weaknesses, 
one of which was a really unreasonable antipathy 
to Thomas Jefferson; an antipathy which, I 
surmise, must, when Jefferson was inaugurated, 
have verged upon contempt. At least Marshall 
did what cautious men seldom do when they 
respect an adversary, he took the first oppor- 
tunity to pick a quarrel with a man who had the 
advantage of him in position. 

In the last days of his presidency John Adams 
appointed one William Marbury a justice of the 
peace for the District of Columbia. The Senate 
confirmed the appointment, and the President 
signed, and John Marshall, as Secretary of State, 
sealed Marbury's commission ; but in the hurry of 
surrendering office the commission was' not de- 
livered, and Jefferson found it in the State Depart- 
ment when he took possession. Resenting violently 
these "midnight" appointments, as he called them, 
Jefferson directed Mr. Madison, his Secretary 
of State, to withhold the commission ; and, at the 
next December term of the Supreme Court, 
Marbury moved for a rule to Madison to show 
cause why he should not be commanded to deliver 



64 THE THEORY OF SOCIAL REVOLUTIONS 

to the plaintiff the property to which Marbury 
pretended to be entitled. Of course Jefferson 
declined to appear before Marshall, through his 
Secretary of State, and finally, in February, 1803, 
Marshall gave judgment, in what was, without any 
doubt, the most anomalous opinion he ever de- 
hvered, in that it violated all judicial conventions, 
for, apparently, no object, save to hirniihate a 
political opponent. 

Marshall had no intention of commanding 
Madison to surrender the commission to Marbury. 
He was too adroit a politician for that. Marshall 
knew that he could not compel Jefferson to obey 
such a writ against his will, and that in issuing 
the order he would only bring himself and his 
court into contempt. What he seems to have 
wished to do was to give Jefferson a lesson in de- 
portment . Accordingly, instead of dismissing Mar- 
bury's suit upon any convenient pretext, as, accord- 
ing to legal etiquette, he should have done if he 
had made up his mind to decide against the plain- 
tiff, and yet thought it inexpedient to explain his 
view of the law, he began his opinion with a long 
and extra-judicial homily, first on Marbury's 
title to ownership in the commission, and then on 



LIMITATIONS OF THE JUDICIAL FUNCTION 65 

civil liberty. Having affirmed that Marbury's 
right to his office vested when the President had 
signed, and the Secretary of State had sealed the 
instrument, he pointed out that withholding the 
property thus vested was a violation of civil rights 
which could be examined in a court of justice. 
Were it otherwise, the Chief Justice insisted, 
the government of the United States could 
not be termed a government of laws and not of 
men. 

All this elaborate introduction was in the nature 
of a solemn lecture by the Chief Justice of the 
Supreme Court to the President of the United 
States upon his faulty -discharge of his official 
duties. Having eased his mind on this head, 
Marshall went on, very dexterously indeed, but 
also very palpably, to elude the consequences 
of his temerity. He continued : The right of 
property being established, and the violation 
of that right clear, it is plain that a wrong has 
been committed, and it only remains to determine 
whether that wrong can be redressed under this 
form of procedure. We are of opinion that it 
cannot, because Congress has no constitutional 
power to confer upon the Supreme Court original 



66 THE THEORY OF SOCIAL REVOLUTIONS 

jurisdiction in this class of litigation. In the 
lower courts alone can the relief prayed for be 
obtained. 

Of all the events of Marshall's life this contro- 
versy with Jefferson seems to me the most equivo- 
cal, and it was a direct effect of a constitutional 
system which has permitted the courts to become 
the censor of the political departments of the 
government. Marshall, probably, felt exasperated 
by Jefferson's virulence against these final appoint- 
ments made by John Adams, while Marshall 
was Secretary of State, and for which he may 
have felt himself, in part, responsible. Possi- 
bly, even, he may have taken some of Jeffer- 
son's strictures as aimed at himself. At all 
events he went to extreme lengths in retalia- 
tion. He might have dismissed the litigation 
in a few words by stating that, whatever 
the abstract rights of the parties might have 
been, the Supreme Court had no power to 
constrain the President in his official functions ; 
but he yielded to political animosity. Then, 
having taken a position practically untenable, he 
had to find an avenue of retreat, and he found 
it by asserting a supervisory jurisdiction over 



LIMITATIONS OF THE JUDICIAL FUNCTION 67 

Congress, a step which, even at that early period, 
was most hazardous.-^ 

In reahty Jefferson's temper, far from being 
vindictive and revolutionary, as his enemies 
believed, was rather gentle and timid, but he 
would have been more than mortal had he endured 
such an insult in silence. Nor coxild he, perhaps, 
have done so without risking the respect of his 
followers. So he decided on reprisals, and a 
scheme was matured among influential Virginians, 
like John Randolph and Senator William Giles, to 
purge the Supreme Court of FederaHsts. Among 
the associate justices of this court was Samuel 
Chase, a signer of the Declaration of Independence 
and an able lawyer, but an arrogant and indiscreet 
partisan. Chase had made himself obnoxious on 
various public occasions and so was considered to 
be the best subject to impeach; but if they suc- 
ceeded with him the Jeffersonians proclaimed their 
intention of removing all his brethren seriatim, 
including the chief offender of all, John Marshall. 

^ Marshall's constitutional doctrine was not universally accepted, 
even in the courts of the northern states, until long afterward. As 
erninent a jurist as Chief Justice Gibson of Pennsylvania, as late as 
1825, gave a very able dissenting opinion in opposition in Eakin v. 
Raub, 12 S. & R., 344. * 



68 THE THEORY OF SOCIAL REVOLUTIONS 

One day in December, 1804, Senator Giles, of 
Virginia, in a conversation which John Quincy 
Adams has reported in his diary, discussed the 
issue at large, and that conversation is most 
apposite now, since it shows' how early the in- 
evitable tendency was developed to make judges 
who participate in political and social contro- 
versies responsible to the popular will. The 
conversation is too long to extract in full, but a 
few sentences will convey its purport : — 

"He treated with the utmost contempt the idea 
of an independent judiciary. . . . And if the 
judges of the Supreme Court should dare, as they 
had done, to declare an act of Congress unconstitu- 
tional, or to send a mandamus to the Secretary 
of State, as they had done, it was the undoubted 
right of the House of Representatives to impeach 
them, and of the Senate to remove them, for giving 
such opinions, however honest or sincere they 
may have been in entertaining them. * * * And 
a removal by impeachment was nothing more than 
a declaration by Congress to this effect : You hold 
dangerous opinions, and if you are suffered to carry 
them into effect you will work the destruction of 
the nation. We want your offices, for the pur- 



LIMITATIONS OF THE JUDICIAL FUNCTION 69 

pose of giving them to men who will fill them 
better." ^ 

Jefferson, though he controlled a majority in 
the Senate, failed by a narrow margin to obtain 
the two-thirds vote necessary to convict Chase. 
Nevertheless, he accomplished his object. Chase 
never recovered his old assurance, and Marshall 
never again committed a solecism in judicial 
manners. On his side, after the impeachment, 
Jefferson showed moderation. He might, if he 
had been malevolent, without doubt, have ob- 
tained an act of Congress increasing the member- 
ship of the Supreme Court enough to have put 
Marshall in a minority. Then by appointing men 
like Giles he could have compelled Marshall to 
resign. He did nothing of the kind. He spared 
the Supreme Court, which he might have over- 
thrown, and contented himself with waiting until 
time should give him the opportunity to correct 
the poHtical tendencies of a body of men whom 
he sincerely regarded as a menace to, what he con- 
sidered, popular institutions. Thus the ebullition 
caused by Marshall's acrimony toward Jefferson, 
because of Jefferson's strictures on the appoint- 

^ Memoirs, I, 322. 



70 THE THEORY OF SOCIAL REVOLUTIONS 

ments made by his predecessor subsided, leaving 
no very serious immediate mischief behind, save 
the precedent of the nullification of an act of Con- 
gress by the Supreme Court. That precedent, 
however, was followed by Marshall's Democratic 
successor. And nothing can better illustrate the 
inherent vice of the American constitutional sys- 
tem than that it should have been possible, in 
1853, to devise and afterward present to a tribunal, 
whose primary purpose was to administer the 
municipal law, a set of facts for adjudication, on 
purpose to force it to pass upon the validity of 
such a statute as the Missouri Compromise, which 
had been enacted by Congress in 1820, as a sort 
of treaty of peace between the North and South, 
and whose object was the limitation of the spread 
of slavery. Whichever way the Court decided, 
it must have fallen into opprobrium with one-half 
the country. In fact, having been organized by 
the slaveholders to sustain slavery, it decided 
against the North, and therefore lost repute with 
the party destined to be victorious. I need not 
pause to criticise the animus of the Court, nor yet 
the quality of the law which the Chief Justice 
there laid down. It suffices that in the decade 



LIMITATIONS OF THE JUDICIAL FUNCTION 71 

which preceded hostilities no event, in all proba- 
bility, so exasperated passions, and so shook the 
faith of the people of the northern states in the 
judiciary, as this decision. Faith, whether in the 
priest or the magistrate, is of slow growth, and 
if once impaired is seldom fully restored. I doubt 
whether the Supreme Court has ever recovered 
from the shock it then received, and, considered 
from this point of view, the careless attitude of 
the American people toward General Grant's 
administration, when in 1871 it obtained the 
reversal of Hepburn v. Griswold by appointments 
to the bench, assumes a sombre aspect. 

Of late some sensitiveness has been shown in 
regard to this transaction, and a disposition has 
appeared to defend General Grant and his At- 
torney-General against the charge of manipulating 
the membership of the bench to suit their own 
views. At the outset, therefore, I wish to dis- 
claim any intention of entering into this discussion. 
To me it is immaterial whether General Grant 
and Mr. Hoar did or did not nominate judges 
with a view to obtaining a particular judgment. 
I am concerned not with what men thought, 
but with what they did, and with the effect of 



72 



THE THEORY OF SOCIAL REVOLUTIONS 



their acts at the moment, upon their fellow- 
citizens. 

Hepburn v. Griswold was decided in conference 
on November 27, 1869, when eight justices were 
on the bench. On February i, following, Justice 
Grier resigned, and, on February 7, judgment was 
entered, the court then being divided four to 
three, but Grier having been with the majority, 
the vote in reality stood five to three. Two 
vacancies therefore existed on February 7, one 
caused by the resignation of Grier, the other by 
an act of Congress which had enlarged the court 
by one member, and which had taken effect in 
the previous December. 

Chief Justice Chase held that the clause of the 
currency laws of 1862 and 1863 which made 
depreciated paper a legal tender for preexisting 
debts was unconstitutional. No sooner had the 
judgment been recorded than all the world per- 
ceived that, if both vacancies should be filled with 
men who would uphold the acts, Hepburn v. Gris- 
wold might be reversed by a majority of one. 

The Republican party had full control of the 
government and was united in vehement support 
of the laws. On March 21, the second of the two 



LIMITATIONS OF THE JUDICIAL FUNCTION 73 

new judges received his commission, and precisely 
ten days afterward the Attorney- General moved 
for a rehearing, taunting the Chief Justice with 
having changed his opinion on this point, and 
intimating that the issue was in reality political, 
and not judicial at all. 

In the December Term following Knox v. Lee 
was argued by the Attorney- General, and, on May 
I, 187 1, judgment was entered reversing Hepburn 
V. Griswold, both the new judges voting with the 
former minority, thus creating the necessary 
majority of one. No one has ever doubted that 
what General Grant did coincided with the drift 
of opinion, and that the Republican party sup- 
ported him without inquiring how he had achieved 
success.^ After this it is difficult to suppose that 
much respect could remain among the American 
people for the sanctity of judicial political de- 
cisions, or that a President, at the head of a popu- 
lar majority, would incur much odium for in- 
tervening to correct them, as a party measure. 

The last example of judicial interference which 



^Hepburn v. Griswold, 8 Wallace 603. Decided in conference 
on Nov. 27, 1869, more than a month before Grier's resignation. 
Knox V. Lee, 12 Wallace 457. 



74 THE THEORY OF SOCIAL REVOLUTIONS 

I shall mention was the nullification, in 1895, of a 
statute of Congress which imposed an income tax. 
The states have since set this decision aside by- 
constitutional amendment, and I should suppose 
that few would now dispute that the Court when 
it so decided made a serious political and social 
error. As Mr. Justice White pointed out, the 
judges undertook to deprive the people, in their 
corporate capacity, of a power conceded to Con- 
gress "by universal consensus for one hundred 
years." ^ These words were used in the first 
argument, but on the rehearing the present Chief 
Justice waxed warm in remonstrating against the 
unfortunate position in which his brethren placed 
the Court before the nation, protesting with 
almost passionate earnestness against the reversal 
by half-a-dozen judges of what had been the uni- 
versally accepted legal, political, and economic 
policy of the country solely in order that "in- 
vested wealth " might be read " into the consti- 
tution " as a favored and protected class of 
property. Mr. Justice White closed by saying that 
by this act the Supreme Court had "deprived [the 
Government] of an inherent attribute of its being." ^ 

1 157 U. S. 608. 

2 Pollock V. The Farmers' Loan & Trust Co., 158 U. S. 715. 



LIMITATIONS OF THE JUDICIAL FUNCTION 75 

I might go on into endless detail, but I ap- 
prehend that these cases, which are the most, 
important which have ever arisen on this issue, 
suffice for my purpose.-"^ I contend that no court ! 
can, because of the nature of its being, effectively ( 
check a popular majority acting through a co- 

^In 1889 Mr. J. C. Bancroft Davis compiled a table of the acts of 
Congress which up to that time had been held to be unconstitutional. 
It is to be found in the Appendix to volume 131 U. S. Reports, page 
ccxxxv. Mr. Davis has, however, omitted from his list the Dred 
Scott Case, probably for the technical reason that, in 1857, when the 
cause was decided, the Missouri Compromise had been repealed. 
Nevertheless, though this is true, Taney's decision hinged upon the 
invalidity of the law. 

Besides the statutes which I have mentioned in the text, the two 
most important, I suppose, which have been annulled, have to me no 
little interest. These are the Civil Rights Act of 1875, and the Em- 
ployers' Liability Act of 1906. The Civil Rights Act of 1875 grew 
rapidly unpopular, and the decision which overturned it coincided 
with the strong drift of opinion. The Civil Rights Cases were de- 
cided in October, 1883, a-iid Mr. Cleveland was elected President in 
1884. Doubtless the law would have been repealed had the judiciary 
supported it. Therefore this adjudication stood. 

On the other hand, the Employers' Liability Act of 1906 was held 
bad because Congress undertook to deal with commerce conducted 
wholly within the states, and therefore beyond the national jurisdic- 
tion. The Court, consequently, in the Employers' Liability Cases, 
simply defined the limits of sovereignty, as a Canadian Court might 
do ; it did not question the existence of sovereignty itself. In 1908 
Congress passed a statute free from this objection, and the Court, in 
the Second Employers' Liability Cases, 223 U. S. i, sustained the 
legislation in the most thoroughgoing manner. I know not where to 
look for two better illustrations of my theory. 



76 THE THEORY OF SOCIAL REVOLUTIONS 

ordinate legislative assembly, and I submit that 
the precedents which I have cited prove this con- 
tention. The only result of an attempt and failure 
is to bring courts of justice into odium or contempt, 
and, in any event, to make them objects of attack 
by a dominant social force in order to use them as 
an instrument, much as Charles II used Jeffreys. 
The moment we consider the situation philo- 
sophically we perceive why using a court to control 
a coordinate legislature must, nearly inevitably, 
be sooner or later fatal to the court, if it asserts 
its prerogative. A court to be a fit tribunal to 
administer the municipal law impartially, or 
even relatively impartially, must be a small body 
of men, holding by a permanent and secure tenure, 
guarded from all pressure which may unduly in- 
fluence them. Also they should be men of much 
experience and learned in the precedents which 
should make the rules which they apply stable and 
consistent. In short, a court should be rigid and 
emotionless. It follows that it must be con- 
servative, for its members should long have passed 
that period of youth when the mind is sensitive 
to new impressions. Were it otherwise, law would 
cease to be cohesive. 



LIMITATIONS OF THE JUDICIAL FUNCTION 77 

A legislature is nearly the antithesis of a court. 
It is designed to reflect the passions of the voters, 
and the majority of voters are apt to be young. 
Hence in periods of change, when alone serious 
clashes between legislatures and courts are likely 
to occur, as the social equilibrium shifts the 
, legislature almost certainly will reflect the rising, 
the court the sinking power. I take the Dred 
Scott Case as an illustration. In 1857 the slave- 
holding interest had passed the zenith of high 
fortune, and was hastening toward its decline. 
In the elections of 1858 the Democratic party, 
which represented slavery, was defeated. But 
the Supreme Court had been organized by Demo- 
crats who had been dominant for many years, and 
it adhered, on the principle laid down by Jeffreys, 
to the master which created it. 

Occasionally, it is true, a court has been con- 
structed by a rising energy, as was the Supreme 
Court in 1789, but then it is equally tenacious to 
the instinct which created it. The history of the 
Supreme Court is, in this point of view, emi- 
nently suggestive. The Federalist instinct was 
constructive, not destructive, and accordingly 
Marshall's fame rests on a series of constructive 



78 THE THEORY OF SOCIAL REVOLUTIONS 

decisions like M'Culloch v. Maryland, Cohens v. 
Virginia, and Gibbons v. Odgen. In these de- 
cisions he either upheld actual national legislation, 
or else the power of the nation to legislate. Con- 
versely, whenever Marshall or his successors 
have sought to obstruct social movement they 
have not prospered. Marbury v. Madison is not 
an episode on which any admirer of Marshall 
can linger with satisfaction. In theory it may be 
true, as Hamilton contended, that, given the fact 
that a written constitution is inevitable, a bench 
of judges is the best tribunal to interpret its 
meaning, since the duty of the judge has ever been 
and is now to interpret the meaning of written 
instruments; but it does not follow from this 
premise that the judges who should exercise this 
ofl&ce should be the judges who administer the 
municipal law. In point of fact experience has 
proved that, so far as Congress is concerned, the 
results of judicial interference have been negative. 
And it would be weU if in other spheres of Ameri- 
can constitutional development, judicial activity 
had been always negative. Unfortunately, as I 
believe, it has extended into the domain of legis- 
lation. I will take the Dred Scott Case once 



LIMITATIONS OF THE JUDICIAL FUNCTION 79 

more to illustrate my meaning. The North found 
it bad enough for the Supreme Court to hold 
that, under the Constitution, Congress could not 
exclude slavery from the national territory beyond 
a certain boundary which had been fixed by com- 
promise between the North and South. But the 
North would have found it intolerable if the Court, 
while fully conceding that Congress might so 
legislate, if the character of the legislation com- 
mended itself to the judges, had held the Missouri 
Compromise to be unconstitutional because they 
thought it unreasonable. Yet this, in substance, 
is what our courts have done. And this brings 
me to the consideration of American courts as 
legislative chambers. 



CHAPTER III 

AMERICAN COURTS AS LEGISLATIVE CHAMBERS 

In one point of view many of the greatest of 
the Federalists were ideaHsts. They seem sin- 
cerely to have believed that they could, by some 
form of written words, constrain a people to be 
honest against their will, and almost as soon as 
the new government went into operation they 
tested these beliefs by experiment, with very in- 
different success. I take it that jurists like Jay 
and Marshall held it to be axiomatic that rules 
of conduct should be laid down by them which 
would be applicable to rich and poor, great and 
small, alike, and that courts could maintain such 
rules against aU pressure. Possibly such prin- 
ciples may be enforced against individuals, but 
they cannot be enforced against communities, 
and it was here that the Federalist philosophy 
collapsed, as Hamilton, at least partly, foresaw 
that it must. 

Sovereigns have always enjoyed immunity 

80 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 8l 

from suit by private persons, unless they have 
been pleased to assent thereto, not because it is 
less wrongful for a sovereign than for an individual 
to cheat, but because the sovereign cannot be 
arrested and the individual can. With the 
Declaration of Independence the thirteen colonies 
became sovereigns. Petty sovereigns it is true, 
and singly contemptible in physical force as 
against most foreign nations, but none the less 
tenacious of the attributes of sovereignty, and 
especially of the attribute which enabled them 
to repudiate their debts. Jay, Marshall, and 
their like, thought that they could impose the 
same moral standard upon the states as upon 
private persons ; they were unable to do so, but 
in making the attempt they involved the American 
judicial system in a maze of difhculties whose 
gravity, I fear, can hardly be exaggerated. Be- 
fore entering upon this history, however, I must 
say a word touching the nature of our law. 

Municipal law, to be satisfactory, should be a 
body of abstract principles capable of being ap- 
plied impartially to all relevant facts, just as 
Marshall and Jay held it to be. Where exceptions 
begin, equality before the law ends, as I have 



82 THE THEORY OF SOCIAL REVOLUTIONS 

tried to show by the story of King David and 
Uriah, and therefore the great effort of civiUzation 
has been to remove judges from the possibility 
of being subjected to a temptation, or to a press- 
ure, which may deflect them from impartiaHty 
as between suitors. In modern civiHzation, es- 
pecially, nothing is so fatal to the principle of 
order as inequality in the dispensation of justice, 
and it would have been reasonable to suppose 
that Americans, beyond all others, would have 
been alive to this teaching of experience, and have 
studiously withdrawn their bench from politics. 
In fact they have ignored it, and instead they 
have set their judiciary at the focus of conflicting 
forces. The result has been the more unfortunate 
as the English system of jurisprudence is iU cal- 
culated to bear the strain, it being inflexible. In 
theory the English law moves logically from prec- 
edent to precedent, the judge originating nothing, 
only elaborating ideas which he has received from 
a predecessor, and which are binding on him. If 
the line of precedents leads to wrongful conclusions, 
the legislature must intervene with a statute rec- 
tifying the wrong. The Romans, %ho were gifted 
with a higher legal genius than we, managed 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 83 

better. The prsetor, by his edict, suppressed in- 
convenient precedents, and hence the Romans 
maintained flexibiHty in their municipal law with- 
out falling into confusion. We have nothing to 
correspond to the praetor. 

Thus the English system of binding precedents 
is troublesome enough in a civilization in chronic 
and violent flux like modern civilization, even 
when applied to ordinary municipal law which 
may be changed at will by legislation, but it 
brings society almost to a stand when applied to 
the most vital functions of government, with no 
means at hand to obtain a corrective. For the 
court of last resort having once declared the 
meaning of a clause of the Constitution, that 
meaning remains fixed forever, unless the court 
either reverses itself, which is a disaster, or the 
Constitution can be amended by the states, which 
is not only difficult, but which, even if it be pos- 
sible, entails years of delay. 

Yet pressing emergencies arise, emergencies in 
which a settlement of some kind must almost 
necessarily be reached somewhat rapidly to avert 
very serious disorders, and it has been under this 
tension, as I understand American constitutional 



84 THE THEORY OF SOCIAL REVOLUTIONS 

development, that our courts have resorted to 
legislation. Nor is it fair for us to measure the 
sagacity of our great jurists by the standard of 
modern experience. They lived before the ac- 
celeration of movement by electricity and steam. 
They could not foresee the rapidity and the pro- 
fundity of the changes which were imminent. 
Hence it was that, in the spirit of great lawyers, 
who were also possibly men tinged with a certain 
enthusiasm for the ideal, they began their work 
by ruling on the powers and limitations of sover- 
eignty, as if they were ruling on the necessity of 
honest intent in dealings with one's neighbor. 

In 1789 General Washington is said to have 
offered John Jay his choice of offices under the 
new government, and Jay chose the chief justice- 
ship, because there he thought he could make his 
influence felt most widely. If so he had his wish, 
and very shortly met with disappointment. In 
the August Term of 1792, one Chisholm, a citizen 
of South Carolina, sued the State of Georgia for 
a debt. Georgia declined to appear, and in Feb- 
ruary, 1793, Jay, in an elaborate opinion, gave 
judgment for Chisholm. Jay was followed by his 
associates with the exception of Iredell, J., of 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 85 

North Carolina. Forthwith a ferment began, and 
in the very next session of Congress an amend- 
ment to the Constitution was proposed to make 
such suits impossible. In January, 1798, five 
years after the case was argued, this amendment 
was declared to be adopted, but meanwhile Jay 
had resigned to become governor of New York. 
In December, 1800, he was again offered the chief 
justiceship by John Adams, on the resignation of 
Oliver Ellsworth, but Jay resolutely declined. I 
have often wondered whether Jay's mortifica- 
tion at having his only important constitu- 
tional decision summarily condemned by the 
people may not have given him a distaste for 
judicial life. 

The Federalist attempt to enforce on the states 
a positive ride of economic morality, therefore, 
collapsed at once, but it still remained possible to 
approach the same problem from its negative side, 
through the clause of the Constitution which for- 
bade any state to impair the validity of contracts, 
and Marshall took up this aspect of the task where 
Jay left it. In Marshall's mind his work was 
simple. He had only to determine the nature of 
a contract, and the rest followed automatically. 



86 THE THEORY OF SOCIAL REVOLUTIONS 

All contracts were to be held sacred. Their 
greater or less importance was immaterial. 

In 1810 Marshall expounded this general prin- 
ciple in Fletcher v. Peck.^ "When ... a law 
is in its nature a contract ... a repeal of the law 
cannot devest" rights which have vested under it. 
A couple of years later he applied his principle 
to the extreme case of an unlimited remission of 
taxation.^ The State of New Jersey had granted 
an exemption from taxation to lands ceded to 
certain Indians. Marshall held that this contract 
ran with the land, and inured to the benefit of 
grantees from the Indians. If the state cared 
to resume its power of taxation, it must buy the 
grant back, and the citizens of New Jersey must 
pay for their improvidence. 

Seven years later, in 1819, Marshall may, per- 
haps, be said to have reached the culmination of 
his career, for then he carried his moral standard 
to a breaking strain. But, though his theory broke 
down, perhaps the most striking evidence of his 
wonderful intellectual superiority is that he con- 
vinced the Democrat, Joseph Story, — a man 

^ 6 Cranch 135. 

2 New Jersey v. Wilson, 7 Cranch 164, decided in 181 2. 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 87 

who had been nominated by Madison to oppose 
him, and of undoubted strength of character, — 
of the soundness of his thesis. In 1769 ELing 
George III incorporated certain Trustees of 
Dartmouth College. The charter was accepted 
and both real and personal property were there- 
upon conveyed to this corporate body, in trust 
for educational purposes. In 18 16 the legislature 
of New Hampshire reorganized the board of 
trustees against their will. If the incorporation 
amounted to a contract, the Court was clear that 
this statute impaired it ; therefore the only really 
debatable issue was whether the grant of a charter 
by the king amounted to a contract by him, with 
his subjects to whom he granted it. After pro- 
longed consideration Marshall concluded that it 
did, and I conceive that, in the eye of history, 
he was right. Throughout the Middle Ages cor- 
porate privileges of aU kinds, but especially mu- 
nicipal corporate privileges, had been subjects of 
purchase and sale, and indeed the mediaeval social 
system rested on such contracts. So much was 
this the case that the right to return members 
of Parliament from incorporated boroughs was, 
as Lord Eldon pointed out in the debates on the 



88 THE THEORY OF SOCIAL REVOLUTIONS 

Reform Bill, as much private property "as any of 
your lordships' " titles and peerages. 

It was here that Marshall faltered. He felt 
that the public would not support him if he held 
that states could not alter town and county char- 
ters, so he arbitrarily split corporations in halves, 
protecting only those which handled exclusively 
private funds, and abandoning "instruments of 
government," as he called them, to the mercy of 
legislative assemblies. 

Toward 1832 it became convenient for middle 
class Englishmen to confiscate most of the prop- 
erty which the aristocracy had invested in par- 
liamentary boroughs, and this social revolution 
was effected without straining the judicial system, 
because of the supremacy of Parliament. In 
America, at about the same time, it became, in 
like manner, convenient to confiscate numerous 
equally well-vested rights, because, to have com- 
pensated the owners would have entailed a con- 
siderable sacrifice which neither the public nor 
the promoters of new enterprises were willing to 
make. The same end was reached in America as 
in England, in spite of Chief Justice Marshall and 
the Dartmouth College Case, only in America it 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 89 

was attained by a legal somerset which has dis- 
ordered the course of justice ever since. 

In 1697 King William III incorporated Trinity 
Church in the City of New York, confirming to 
the society the possession of a parcel of land, ad- 
joining the church, to be used as a churchyard 
for the burial of the dead. In 1823 the govern- 
ment of New York prohibited interments within 
the city limits, thus closing the churchyard for 
the purposes for which it had been granted. As 
compensation was refused, it appeared to be a 
clear case of confiscation, and Trinity resisted. 
In the teeth of recent precedents the Supreme 
Court of New York decided that, under the 
Police Power, the legislature of New York might 
authorize this sort of appropriation of private 
property for sanitary purposes, without paying the 
owners for any loss they might thereby sustain.^ 

The court thus simply dispensed the legislature 
from obedience to the law, saying in effect, "al- 
though the Constitution forbids impairing con- 
tracts, and although this is a contract which you 
have impaired, yet, in our discretion, we suspend 
the operation of the Constitution, in this instance, 

^ Coates V. Mayor of New York, 7 Cowen 585. 



90 THE THEORY OF SOCIAL REVOLUTIONS 

by calling your act an exercise of a power unknown 
to the framers of the Constitution." I cannot 
doubt that Marshall would have flouted this 
theory had he Hved to pass upon it, but Marshall 
died in 1835, and the Charles River Bridge Case, 
in which this question was first presented to the 
Supreme Court of the United States, did not come 
up until 1837. Then Joseph Story, who remained 
as the representative of Marshall's philosophy 
upon the bench, vehemently protested against the 
latitudinarianism of Chief Justice Taney and his as- 
sociates, but without producing the slightest effect. 
In 1785 the Massachusetts legislature chartered 
the Charles River Bridge Company to build a 
bridge between Boston and Charlestown, author- 
izing it, by way of consideration, to collect tolls 
for forty years. In 1792 the franchise was ex- 
tended to seventy years, when the bridge was to 
revert to the Commonwealth. In 1828 the legis- 
lature chartered the Warren Bridge Company, 
expressly to build a bridge parallel to and practi- 
cally adjoining the Charles River Bridge, the War- 
ren Bridge to become a free bridge after six years. 
The purpose, of course, was to accelerate movement 
by ruining the Charles River Bridge Company. 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 91 

The Charles River Bridge Company sought to 
restrain the building of the Warren Bridge as a 
breach of contract by the State, but failed to ob- 
tain reHef in the state courts, and before the cause 
could be argued at Washington the Warren Bridge 
had become free and had destroyed the value of 
the. Charles River Bridge, though its franchise 
had still twenty years to run. As Story pointed 
out, no one denied that the charter of the Charles 
River Bridge Company was a contract, and, as he 
insisted, it is only common sense as well as com- 
mon justice and elementary law, that contracts 
of this character should be reasonably interpreted 
so far as quiet enjoyment of the consideration 
granted is concerned ; but all this availed nothing. 
The gist of the opposing argument is contained 
in a single sentence in the opinion of the Chief 
Justice who spoke for the majority of the court : 
"The millions of property which have been in- 
vested in railroads and canals, upon lines of 
travel which had been before occupied by turn- 
pike corporations, will be put in jeopardy" if this 
doctrine is to prevail.^ 

The effect of the adoption by the Supreme 

* Charles River Bridge v. Warren Bridge, 1 1 Peters 420, 553. 



92 THE THEORY OF SOCIAL REVOLUTIONS 

Court of the United States of the New York 
theory of the Pohce Power was to vest in the 
judiciary, by the use of this catch-word, an al- 
most unparalleled prerogative. They assumed a 
supreme function which can, only be compared 
to the Dispensing Power claimed by the Stuarts, 
or to the authority which, according to the Coun- 
cil of Constance, inheres in the Church, to "grant 
indulgences for reasonable causes." I suppose 
nothing in modern judicial history has ever re- 
sembled this assumption; and yet, when we ex- 
amine it, we find it to be not only the logical, but 
the inevitable, effect of those mechanical causes 
which constrain mankind to move along the lines 
of least resistance. 

Marshall, in a series of decisions, laid down a 
general principle which had been proved to be 
sound when applied by ordinary courts, dealing 
with ordinary social forces, and operating under 
the corrective power of either a legislature or a 
praetor, but which had a different aspect under 
the American constitutional system. He held 
that the fundamental law, embodied in the Con- 
stitution, commanded that all contracts should be 
sacred. Therefore he, as a judge, had but two 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 93 

questions to resolve : First, whether, in the case 
before him, a contract had been proved to exist. 
Second, admitting that a contract had been 
proved, whether it had also been shown to have 
been impaired. 

Within ten years after these decisions it had 
been found in practice that pubhc opinion would 
not sustain so rigid an administration of the law. 
No legislature could intervene, and a pressure was 
brought to bear which the judges could not with- 
stand; therefore, the Court yielded, declaring 
that if impairing a contract were, on the whole, 
for the public welfare, the Constitution, as Mar- 
shall interpreted it, should be suspended in favor 
of the legislation which impaired it. They called 
this suspension the operation of the "Police 
Power." It followed, as the "Police Power" 
could only come into operation at the discretion 
of the Court, that, therefore, within the limits of 
judicial discretion, confiscation, however arbitrary 
and to whatever extent, might go on. In the 
energetic language of the Supreme Court of 
Maine: "This duty and consequent power 
override all statute or contract exemptions. The 
state cannot free any person or corporation from 



94 THE THEORY OF SOCIAL REVOLUTIONS 

subjection to this power. All personal, as well 
as property rights must be held subject to the 
Police Power of the state." ^ 

Once the theory of the Police Power was es- 
tablished it became desirable to define the limits 
of judicial discretion, but that proved to be im- 
possible. It could not be determined in advance 
by abstract reasoning. Hence, as each litigation 
arose, the judges could follow no rule but the rule 
of common sense, and the Police Power, trans- 
lated into plain English, presently came to signify 
whatever, at the moment, the judges happened 
to think reasonable. Consequently, they began 
guessing at the drift of pubhc opinion, as it per- 
colated to them through the medium of their 
education and prejudices. Sometimes they guessed 
right and sometimes wrong, and when they guessed 
wrong they were cast aside, as appeared dramati- 
cally enough in the temperance agitation. 

Up to about the middle of the last century the 
lawfulness of the liquor business had been un- 
questioned in the United States, and money had 
been invested as freely in it as in any other legiti- 

1 Boston & Maine Railroad v. County Commissioners, 79 Maine 
393- 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 95 

mate enterprise ; but, as the temperance agitation 
swept over the country, in obedience to the im- 
pulsion given by science to the study of hygiene, 
dealing in liquor came to be condemned as a crime. 
Presently legislatures began to pass statutes to 
confiscate, more or less completely, this kind of 
property, and sufferers brought their cases before 
the courts to have the constitutionality of the 
acts tested, under the provisions which existed 
in all state constitutions, forbidding the taking, 
by the public, of private property without com- 
pensation, or without due process of law. Such 
a provision existed in the constitution of the State 
of New York, adopted in 1846, and it was to in- 
voke the protection of this clause that one Wyne- 
hamer, who had been indicted in 1855, carried his 
case to the Court of Appeals in the year 1856. 
In that cause Mr. Justice Comstock, who was 
one of the ablest jurists New York ever produced, 
gave an opinion which is a model of judicial 
reasoning. He showed conclusively the absurdity 
of constitutional restrictions, if due process of 
law may be held to mean the enactment of the 
very statute drawn to work confiscation.^ 

^ Wynehamer v. The People, 13 N.Y, 393. 



g6 THE THEORY OF SOCIAL REVOLUTIONS 

This decision, which represented the profound- 
est convictions of men of the cahbre of Comstock 
and Denio, deserves to rank with Marshall's 
effort in the Dartmouth College Case. In both 
instances the tribunal exerted itself to carry out 
Hamilton's principle of judicial duty by exer- 
cising its jtddgment and not its will. In other 
words, the judges propounded a general rule and 
then simply determined whether the set of facts 
presented to them fell within that rule. They 
resolutely declined to legislate by entering upon 
a consideration of the soundness or reasonableness 
of the poUcy which underlay the action of the 
legislature. In the one case as in the other the 
effort was unavailing, as Jefferson prophesied 
that it would be. I have told of Marshall's over- 
throw in the Charles River Bridge Case, and in 
1887, after controversies of this category had 
begun to come before the Supreme Court of the 
United States under the Fourteenth Amendment, 
Mr. Justice Harlan swept Mr. Justice Comstock 
aside by quietly ignoring an argument which was 
unanswerable.^ The same series of phenomena 
have appeared in regard to laws confiscating prop- 

^Mugler V. Kansas, 123 U.S. 623. 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 97 

erty invested in lotteries, when opinion turned 
against lotteries, or in occupations supposed to be 
unsanitary, as in the celebrated case of the taxing 
out of existence of the rendering establishment 
which had been erected as a pubHc benefit to re- 
lieve the City of Chicago of its offal.\ In fine, 
whenever pressure has reached a given intensity, 
on one pretext or another, courts have enforced 
or dispensed with constitutional limitations with 
quite as much facility as have legislatures, and for 
the same reasons. The only difference has been 
that the pressure which has operated most directly 
upon courts has not always been the pressure 
which has swayed legislatures, though sometimes 
both influences have combined. For example, 
during the Civil War, the courts sanctioned every- 
thing the popular majority demanded under the 
pretext of the War Power, as in peace they have 
sanctioned confiscations for certain popular pur- 
poses, under the name of the Police Power. But 
then, courts have always been sensitive to financial 
influences, and if they have been flexible in per- 
mitting popular confiscation when the path of 
least resistance has lain that way, they have gone 

1 Fertilizing Co. v. Hyde Park, 97 U.S. 659. 



98 THE THEORY OF SOCIAL REVOLUTIONS 

quite as far in the reverse direction when the 
amount of capital threatened has been large enough 
to be with them a countervailing force. 

As the federal Constitution originally contained 
no restriction upon the states touching the con- 
fiscation of the property of their own citizens, pro- 
vided contracts were not impaired, it was only in 
1868, by the passage of the Fourteenth Amend- 
ment, that the Supreme Court of the United 
States acquired the possibility of becoming the 
censor of state legislation in such matters. Nor 
did the Supreme Court accept this burden very 
willingly or in haste. For a number of years it 
labored to confine its function to defining the 
limits of the Police Power, guarding itself from 
the responsibility of passing upon the "reason- 
ableness" with which that power was used. It 
was only by somewhat slow degrees, as the value 
of the threatened property grew to be vast, that 
the Court was deflected from this conservative 
course into effective legislation. The first prayers 
for relief came from the Southern states, who were 
still groaning under reconstruction governments; 
but as the Southern whites were then rather poor, 
their complaints were neglected. The first very 



AMERICAN COURTS AS . LEGISLATIVE CHAMBERS 99 

famous cause of this category is known as the 
Slaughter House Cases. In 1869 the Carpet Bag 
government of Louisiana conceived the plan of 
confiscating most of the property of the butchers 
who slaughtered for New Orleans, within a dis- 
trict about as large as the State of Rhode Island. 
The Fourteenth Amendment forbade states to 
deprive any person of life, liberty, or property, 
without due process of law, and the butchers of 
New Orleans prayed for protection, alleging that 
the manner in which their property had been 
taken was utterly lawless. But the Supreme 
Court declined to interfere, explaining that the 
• Fourteenth Amendment had been contrived to 
protect the emancipated slaves, and not to make 
the federal judiciary "a perpetual censor upon 
all legislation of the states, on the civil rights of 
their own citizens, with authority to nuUify such 
as it did not approve." ^ 

Although, even at that relatively early day, this 
conservatism met with strong opposition within 
the Court itself, the pressure of vested wealth 
did not gather enough momentum to overcome the 
inertia of the bench for nearly another generation. 

^ Slaughter House Cases, 16 Wallace 78, decided in 1873. 



lOO THE THEORY OF SOCIAL REVOLUTIONS 

It was the concentration of capital in monopoly, 
and the consequent effort by the public to regulate 
monopoly prices, which created the stress which 
changed the legal equilibrium. The modern 
American monopoly seems first to have generated 
that amount of friction, which habitually finds 
vent in a great litigation, about the year 1870; 
but only some years later did the states enter 
upon a determined policy of regulating monopoly 
prices by law, with the establishment by the 
Illinois legislature of a tariff for the Chicago ele- 
vators. The elevator companies resisted, on the 
ground that regulation of prices in private business 
was equivalent to confiscation, and so in 1876 the 
Supreme Court was dragged into this fiercest of 
controversies, thereby becoming subject to a 
stress to which no judiciary can safely be exposed. 
Obviously two questions were presented for ad- 
judication : The first, which by courtesy might 
be termed legal, was whether the fixing of prices 
by statute was a prerogative which a state legis- 
lature might constitutionally exercise at all; the 
second, which was purely political, was whether, 
admitting that, in the abstract, such a power 
could be exercised by the state, Illinois had, in 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS loi 

this particular case, behaved reasonably. The 
Supreme Court made a conscientious effort to 
adhere to the theory of Hamilton, that it should, 
in emergencies like this, use its jtulgment only, 
and not its will; that it should lay down a rule, 
not vote on the wisdom of a policy. So the judges 
decided that, from time immemorial, the fixing of 
prices in certain trades and occupations had been a 
legislative function, which they supposed might be 
classified as a branch of the Police Power, but they 
declared that with this expression of opinion their 
jurisdiction ended. When it came to asking 
them to criticise the propriety of legislation, it 
was, in substance, proposing that they should 
substitute their will for the ivill of the represen- 
tatives of the people, which was impossible. I 
well remember the stir made by the case of Munn 
V. Illinois.^ 

Both in and out of the legal profession, those in 
harmony with the great vested interests com- 
plained that the Court had shirked its duty. But 
these complaints soon ceased, for a movement 
was in progress which swept, for the moment, all 
before it. The great aggregations of capital, 
194U.S. 113. 



I02 THE THEORY OF SOCIAL REVOLUTIONS 

which had been accumulating ever since the 
Charles River Bridge Case, not long after Munn 
V. Illinois attained to a point at which they began 
to grasp many important prerogatives of sover- 
eignty, and to impose, what was tantamount to, 
arbitrary taxation upon a large scale. The crucial 
trial of strength came on the contest for control of 
the railways, and in that contest concentrated 
capital prevailed. The Supreme Court reversed 
its attitude, and undertook to do that which it 
had solemnly protested it could not do. It began 
to censor legislation in the interest of the strongest 
force for the time being, that force being actually 
financial. By the year 1890 the railway interest 
had expanded prodigiously. Between 1876 and 
1890 the investment in railways had far more 
than doubled, and, during the last five years of 
this period, the increment had been at an average 
of about $450,000,000 annually. At this point 
the majority of the court yielded, as ordinary 
political chambers always must yield, to extraor- 
dinary pressure. Mr. Justice Bradley, however, 
was not an ordinary man. He was, on the con- 
trary, one of the ablest and strongest lawyers 
who sat on the federal bench during the last half 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 103 

of the nineteenth century; and Bradley, like 
Story before him, remonstrated against turning 
the bench of masigtrates, to which he belonged, 
from a tribunal which should propound general 
rules applicable to all material facts, into a jury 
to find verdicts on the reasonableness of the votes 
of representative assemblies. The legislature of 
Minnesota, in 1887, passed a statute to regulate 
railway rates, and provided that the findings of 
the commission which it erected to fix those rates 
should be final. The Chicago, Milwaukee & St. 
Paul Railway contended that this statute was um- 
constitutional, because it was unreasonable, and 
the majority of the Court sustained their con- 
tention.^ Justices Bradley, Gray, and Lamar 
dissented, and Bradley on this occasion delivered 
an opinion, from which I shall quote a paragraph 
or two, since the argument appears to me con- 
clusive, not only from the point of view of law, 
but of political expediency and of common 
sense : — 

"I cannot agree to the decision of the court 
in this case. It practically overrules Munn v. 

1 Chicago, Milwaukee & St. Paul Ry. v. Minnesota, 134 U.S. 461, 
decided March 24, 1890. 



I04 THE THEORY OF SOCIAL REVOLUTIONS 

Illinois. . . . The governing principle of those 
cases was that the regulation and settlement of 
the fares of railroads and other public accommo- 
dations is a legislative prerogative, and not a 
judicial one. This is a principle which I regard 
as of great importance. ... 

"But it is said that all charges should be reason- 
able, and that none but reasonable charges can be 
exacted ; and it is urged that what is a reasonable 
charge is a judicial question. On the contrary, it 
is preeminently a legislative one, involving con- 
siderations of policy as well as of remuneration. . . . 
By the decision now made we declare, in effect, 
that the judiciary, and not the legislature, is the 
final arbiter in the regulation of fares and freights 
of railroads. ... It is an assumption of author- 
ity on the part of the judiciary which, ... it has 
no right to make. The assertion of jurisdiction 
by this court makes it the duty of every court of 
general jurisdiction, state or federal, to entertain 
complaints [of this nature], for all courts are bound 
by the Constitution of the United States, the 
same as we are." 

There is little to add to these words. When 
the Supreme Court thus imdertook to determine 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 105 

the reasonableness of legislation it assumed, under 
a somewhat thin disguise, the position of an upper 
chamber, which, though it could not originate, could i 
absolutely veto most statutes touching the use! 
or protection of property, for the administration 
of modem American society now hinges on this 
doctrine of judicial dispensation under the Police 
Power. Whether it be a regulation of rates and 
prices, of hours of labor, of height of buildings, of^ 
municipal distribution of charity, of flooding a 
cranberry bog, or of prescribing to sleeping-car 
porters duties regarding the lowering of upper 
berths, — in questions great and small, the courts 
vote upon the reasonableness of the use of the 
PoHce Power, like any old-fashioned town meet- 
ing. There is no rule of law involved. There is 
only opinion or prejudice, or pecuniary interest. 
The judges admit frankly that this is so. They 
avow that they try to weigh public opinion, as 
well as they can, and then vote. In 191 1 Mr 
Justice Holmes first explained that the Police 
Power extended to all great public needs, and 
then went on to observe that this Police Power, or 
extraordinary prerogative, might be put forth by 
legislatures "in aid of what is sanctioned by 



I06 THE THEORY OF SOCIAL REVOLUTIONS 

usage, or held by . . . preponderant opinion to 
be . . . necessary to the public welfare." ^ 

A representative chamber reaches its con- 
clusions touching "preponderant opinion" by a 
simple process, but the influences which sway 
courts are obscurer, — often, probably, beyond 
the sphere of the consciousness of the judges 
themselves. Nor is this the worst ; for, as I have 
already explained, the very constitution of a court, 
if it be a court calculated to do its legitimate 
work upon a lofty level, precludes it from keeping 
pace with the movement in science and the arts. 
Necessarily it lags some years behind. And this 
tendency, which is a benefit in the dispensation of 
justice as between private litigants, becomes a 
menace when courts are involved in politics. A 
long line of sinister precedents crowd unbidden 
upon the mind. The Court of King's Bench, 
when it held Hampden to be liable for the Ship 
Money, draped the scaffold for Charles I. The 
Parliament of Paris, when it denounced Turgot's 
edict touching the corvee, threw wide the gate by 
which the aristocracy of France passed to the 
guillotine. The ruling of the Superior Court of 

^ Noble State Bank v. Haskell, 219 U.S. 104. 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 107 

the Province of Massachusetts Bay, in the case 
of the Writs of Assistance, presaged the American 
Revolution ; and the Dred Scott decision was the 
prelude to the Civil War. 

The capital essential of justice is that, under 
like conditions, all should fare alike. The magis- 
trate should be no respecter of persons. The vice 
of our sytem of judicial dispensation is that it 
discriminates among suitors in proportion to their 
power of resistance. This is so because, under 
adequate pressure, our courts yield along the path 
of least resistance. I should not suppose that any 
man could calmly turn over the pages of the recent 
volumes of the reports of the Supreme Court of 
the United States and not rise from the perusal 
convinced that the rich and the poor, the strong 
and the weak, do not receive a common measure 
of justice before that judgment seat. Disregard- 
ing the discrimination which is always apparent 
against those who are unpopular, or who suffer 
under special opprobrium, as do liquor dealers, 
owners of lotteries, and the like,^ I will take, nearly 

^ See the extraordinary case of Douglas v. Kentucky, 168 U.S. 488, 
which must be read in connection with Gregory v. Trustees of Shelby 
College, 2 Mete. (Kentucky) 589. 



lo8 THE THEORY OF SOCIAL REVOLUTIONS 

at random, a couple of examples of rate regulation, 
where tenderness has been shown property in 
something approaching to a mathematical ratio to 
the amount involved. 

In April, 1894, a record was produced before 
the Supreme Court which showed that the State 
of North Dakota had in 1891 established rates 
for elevating and storing grain, which rates the 
defendant, named Brass, who owned a small 
elevator, alleged to be, to him in particular, 
utterly ruinous, and to be in general unreasonable. 
He averred that he used his elevator for the stor- 
age of his own grain, that it cost about $3000, 
that he had no monopoly, as there were many 
hundred such elevators in the state, and, as land 
fit for the purpose of building elevators was plenty 
and cheap, that any man could build an elevator 
in the town in which he lived, as well as he ; that 
the rates he charged were reasonable, and that, 
were he compelled to receive grain generally at 
the rates fixed by the statute, he could not store 
his own grain. All these facts were admitted by 
demurrer, and Brass contended that if any man's 
property were ever to be held to be appropriated 
by the public without compensation, and under no 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 109 

form of law at all save a predatory statute, it 
should be his ; but the Supreme Court voted the 
Dakota statute to be a reasonable exercise of the 
Police Power/ and dismissed Brass to his fate. 

The converse case is a very famous one known 
as Smyth v. Ames,^ decided four years later, in 
1898. In that case it appeared that the State of 
Nebraska had, in 1893, reduced freight rates 
within the state about twenty-nine per cent, in 
order to bring them into some sort of relation to 
the rates charged in the adjoinmg State of Iowa, 
which were calculated to be forty per cent lower 
than the Nebraska rates. Several of the most 
opulent and powerful corporations of the Union 
were affected by this law, among others the ex- 
ceedingly prosperous and influential Chicago, 
Burlington & Quincy Railway. No one pretended 
that, were the law to be enforced, the total rev- 
enues of the Burlington would be seriously im- 
paired, nor was it even clear that, were the estimate 
of reduction, revenue, and cost confined alto- 
gether to the commerce carried on within the 
limits of the State of Nebraska, leaving interstate 

^ Brass v. North Dakota, 153 U.S. 391. 
2 169 U.S". 466. 



no THE THEORY OF SOCIAL REVOLUTIONS 

commerce out of consideration, a loss would be 
suffered during the following year. Trade might 
increase with cheaper rates, or economies might 
be made by the company, or both causes and many 
others of increased earnings might combine. 
Corporation counsel, however, argued that, were 
the principle of the statute admitted, and should 
all the states through which the line passed do 
the like, ultimately a point might be reached at 
which the railway would be unable to maintain, 
even approximately, its dividend of eight per cent, 
and that the creation of such a possibility was con- 
ceding the power of confiscation, and, therefore, 
an unreasonable exercise of the PoHce Power, by 
the State of Nebraska. With this argument the 
Supreme Court concurred. They held the Ne- 
braska statute to be unreasonable. Very possibly 
it may have been unsound legislation, yet it is 
noteworthy that within three years after this 
decision Mr. Hill bought the Chicago, Burlington 
& Quincy, at the rate of $200 for every share of 
stock of the par value of $100, thus fixing forever, 
on the community tributary to the road, the 
burden of paying a revenue on just double the 
value of all the stock which it had been found 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS m 

necessary to issue to build the highway. Even 
at this price Mr. Hill is supposed to have made 
a brilliant bargain. 

6Tliis brings me to the heart of my theorem. 
Ever since Hamilton's time, it has been assumed 
as axiomatic, by conservative Americans, that 
courts whose function is to expound a written 
constitution can and do act as a "barrier to the 
encroachments and oppressions of the represen- 
tative body." ^ I apprehend that courts can per- 
form no such office and that in assuming attri- 
butes beyond the limitations of their being they, 
as history has abundantly proved, not only fail 
in their object, but shake the foundations of au- 
thority, and immolate themselves. Hitherto I 
have confined myself to adducing historical evi- 
dence to prove that American courts have, as a 
.whole, been gifted with so little political sagacity 
that their interference with legislation, on behalf 
of particular suitors, has, in the end, been a danger 
rather than a protection to those suitors, because 
of the animosity which it has engendered. I shall 
now go further. For the sake of argument I am 
willing to admit that the courts, in the exercise 

^The Federalist, No. LXXVIU. 



112 THE THEORY OF SOCIAL REVOLUTIONS 

of the dispensing prerogative, called the Police 
Power, have always acted wisely, so much so that 
every such decree which they have issued may be 
triumphantly defended upon economic, moral, or 
social grounds. Yet, assuming this to be true, 
though I think I have shown it to be untrue, the 
assumption only strengthens my contention, that 
our courts have ceased to be true courts, and are 
converted into legislative chambers, thereby prom- 
ising shortly to become, if they are not already, 
a menace to order. I take it to be clear that the 
, function of a legislature is to embody the will of 
the dominant social force, for the time being, in a 
political policy explained by statutes, and when 
that policy has reached a certain stage of develop- 
ment, to cause it to be digested, together with the 
judicial decisions relevant to it, in a code. This 
process of correlation is the highest triumph of 
the jurist, and it was by their easy supremacy in 
this field of thought, that Roman lawyers chiefly 
showed their preeminence as compared with 
modern lawyers. Still, while admitting this supe- 
riority, it is probably true that the Romans owed 
much of their success in codification to the greater 
permanence of the Roman legislative tenure of 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 113 

office, and, therefore, stability of policy, — phenom- 
ena which were both probably effects of a slower 
social movement among the ancients. The Ro- 
mans, therefore, had less need than we of a per- 
manent judiciary to counteract the disintegrating 
tendency of redundant legislation ; a fortiori, of 
course, they had still less to isolate the judiciary 
from political onslaughts which might cause jus- 
tice to become a series of exceptions to general 
principles, rather than a code of unvarying rules. 

It is precisely because they are, and are intended 
to he) arenas of political combat, that legislatures 
cannot be trustworthy courts, and it was because 
this fact was notorious that the founders of this 
government tried to separate the legislative from 
the judicial function, and to make this separation 
the foundation of the new republic. They failed, 
/as I conceive, not because they made their legis- 
latures courts, but because, under the system they 
devised, their courts have become legislatures. 
A disease, perhaps, the more insidious of the two. 
Insidious because it undermines, order, while 
legislative murder and confiscation induce reaction. 

If a legislative chamber w^ould act as a court, 
the first necessity is to eliminate its legislative. 



114 THE THEORY OF SOCIAL REVOLUTIONS 

character. For example, the House of Lords in 
England has long discharged the duties of a tri- 
bunal of last resort for the empire, and with 
general approbation, but only because, when 
sitting as a court, the law lords sit alone. Poli- 
ticians and political influences are excluded. 
Where political influences enter disaster follows. 
Hence the infamous renown of political decisions 
in legal controversies, such as bills of attainder 
and ex post facto laws, or special legislation to 
satisfy claims which could not be defended before 
legitimate courts, or the scandals always attending 
the trial of election petitions. The object of 
true courts is to shield the public from these and 
kindred abuses. 

In primitive communities courts are erected to 
defend the weak against the strong, by correlating 
local customs in such wise that some general prin- 
ciple can be deduced which shall protect the civil 
rights of those who cannot protect themselves, 
against the arbitrary exactions of powerful neigh- 
bors. In no community can every person have 
equal civil rights. That is impossible. Civil 
rights must vary according to status. But such 
rights as any person may have, those the courts 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 115 

are bound to guard indifferently. If the courts 
do not perform this, their first and most sacred 
duty, I apprehend that order cannot be perma- 
nently maintained, for this is equality before the 
law ; and equality before the law is the corner- 
stone of order in every modem state. 

I conceive that the lawyers of the age of Wash- 
ington were the ablest that America has ever pro- 
duced. No men ever understood the principle 
of equality before the law more thoroughly than 
they, and after the establishment of this govern- 
ment a long series of great and upright magistrates 
strove, as I have shown, to carry this principle 
into effect. Jay and Marshall, Story and Bradley, 
and many, many more, struggled, protested, and 
failed. Failed, as I believe, through no fault of 
their own, but because fortune had placed them 
in a position untenable for the judge. When 
plunged in the vortex of politics, courts must 
waver as do legislatures, and nothing is to me 
more painful than to watch the process of dete- 
rioration by which our- judges lose the instinct 
which should warn them to shun legislation as a 
breach of trust, and to cleave to those general 
principles which permit of no exceptions. To 



Il6 THE THEORY OF SOCIAL REVOLUTIONS 

illustrate my meaning I shall refer to but one 
litigation, but that one is so extraordinary that I 
must deal with it in detail. 

In 1890 the dread of the enhancement of prices 
by monopoly, as the Supreme Court itself has ex- 
plained, caused Congress to pass the famous 
Sherman Act, which prohibited indiscriminately 
all monopolies or restraints of trade. Presently 
the government brought a bill to dissolve an ob- 
noxious railway pool, called the Trans-Missouri 
Freight Association, and in 1896 the case came up 
for adjudication. I have nothing to say touching 
the policy involved. I am only concerned with 
, a series of phenomena, developed through several 
years, as effects of pressure acting upon a judi- 
ciary, exposed as the judiciary, under our system, 
is exposed. 

The Trans-Missouri Case was argued on Decem- 
ber 8, 1896, very elaborately and by the most 
eminent counsel. After long consideration, and 
profound reflection, Mr. Justice Peckham, speak- 
ing for the majority of the tribunal, laid down a 
general principle in conformity to the legislative 
will, precisely as Marshall had laid down a general 
principle in the Dartmouth College Case, or Story 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 117 

in the Charles River Bridge Case, or Waite in 
Munn V. Illinois, or Bradley in the Minnesota 
Rate Case. Then the process of agitation im- 
mediately began. In the words of Mr. Justice 
Harlan, fifteen years later: "But those who 
were in combinations that were illegal did not 
despair. They at once set up the baseless claim 
that the decision of 1896 disturbed the 'business 
interests of the country/ and let it be known that 
they would never be content until the rule was 
established that would permit interstate com- 
merce to be subjected to reasonable restraints." ^ 

Other great causes, involving the same issue, 
were tried, the question was repeatedly reargued, 
but the Supreme Court tenaciously adhered to its 
general principle, that, under the Sherman Act, 
all restraints of trade, or monopolies, were un- 
lawful, and, therefore, the Court had but two 
matters before it, first to define a restraint of 
trade or a monopoly, second to determine whether 
the particular combination complained of fell 
within that definition. ^No discretion was per- 
mitted. Judicial duty ended there. 

The Court being found to be inflexible, recourse 

1 221 U.S. 91. 



Il8 THE THEORY OF SOCIAL REVOLUTIONS 

was had to Congress, and a bill in the form of an 
amendment to the Sherman Act was brought into 
the Senate authorizing, in substance, those who felt 
unsafe under the law, to apply to certain govern- 
ment officials, to be permitted to produce evidence 
of the reasonable methods they employed, and, if 
the evidence were satisfactory, to receive, what 
was tantamount to, an indulgence. The subject 
thus reopened, the Senate Committee on the 
Judiciary went into the whole question of monop- 
oly anew, and in 1909 Senator Nelson presented 
an exhaustive report against the proposed re- 
laxation. Thereupon the Senate indefinitely post- 
poned further consideration of the amendment. 
The chief reasons given by Senator Nelson were 
summed up in a single sentence: "The defence 
of reasonable restraint would be made in every 
case and there would be as many different rules 
of reasonableness as cases, courts, and juries. . . . 
To amend the anti-trust act, as suggested by this 
bill, would be to entirely emasculate it, and for all 
practical purposes render it nugatory as a remedial 
statute. . . . The act as it exists is clear, com- 
prehensive, certain and highly remedial. It prac- 
tically covers the field of federal jurisdiction, and 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 119 

is in every respect a model law. To destroy or 
undermine it at the present juncture, . . . would 
be a calamity. 

" In view of the foregoing, your committee rec- 
ommend the indefinite postponement of the 
bill." 1 

And so the Senate did indefinitely postpone the 
bill. 

Matters stood thus when the government 
brought process to dissolve the Standard Oil 
Company, as an unlawful combination. The 
cause was decided on May 15, 191 1, the Chief 
Justice speaking for the majority of the bench, 
in one of the most suggestive opinions which I 
have ever read. To me this opinion, like Taney's 
opinion in the Charles River Bridge Case, indicates 
that the tension had reached the breaking point, 
the court yielding in all directions at once, while 
the dominant preoccupation of the presiding judge 
seemed to be to plant his tribunal in such a posi- 
tion that it could so yield, without stultifying 
itself hopelessly before, the legal profession and 

^ 60th Congress, 2d Session, Senate, Report No. 848, Adverse 
Report by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, 
page II. 



I20 THE THEORY OF SOCIAL REVOLUTIONS 

the public. In striving to reach this position, 
however, I apprehend that the Chief Justice, un- 
reservedly, crossed the chasm on whose brink 
American jurists had been shuddering for ninety 
years. The task the Chief Justice assumed was 
difficult almost beyond precedent. He proposed 
to surrender to the vested interests the principle 
of reasonableness which they demanded, and which 
the tribunal he represented, together with Con- 
gress, had refused to surrender for fifteen years. 
To pacify the public, which would certainly resent 
this surrender, he was prepared to punish two hated 
corporations, . while he strove to preserve, so far 
as he could, the respect of the legal profession and 
of the public, for the court over which he presided, 
by maintaining a semblance of consistency. 

To accomplish these contradictory results, the 
Chief Justice began, rather after the manner of 
Marshall in Marbury v. Madison, by an extra- 
judicial disquisition. The object of this dis- 
quisition was to justify his admission of the 
evidence of reasonableness as a defence, although 
it was not needful to decide that such evidence 
must be admitted in order to dispose of that par- 
ticular cause. For the Chief Justice very readily 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 121 

agreed that the Standard Oil Company was, 
in fact, an unreasonable restraint of trade, and 
must be dissolved, no matter whether it were 
allowed to prove its reasonable methods or not. 
Accordingly, he might have contented himself 
with stating that, admitting for the sake of argu- 
ment but without approving, all the defendant 
advanced, he should sustain the government; 
but to have so disposed of the case would not 
have suited his purpose. What the Chief Justice 
had it at heart to do was to surrender a fundamen- 
tal principle, and yet to appear to make no surren- 
der at all. Hence, he prepared his preliminary 
and extra-judicial essay on the human reason, 
of whose precise meaning, I must admit, I still, 
after many perusals, have grave doubts. I some- 
times suspect that the Chief Justice did not wish to 
be too explicit. So far as I comprehend the Chief 
Justice, his chain of reasoning amounted to 
something like this : It was true, he observed, 
that for fifteen years the Supreme Court had 
rejected the evidence of reasonableness which he 
admitted, and had insisted upon a general prin- 
ciple which he might be supposed to renounce, 
but this apparent discrepancy involved no con- 



122 THE THEORY OF SOCIAL REVOLUTIONS 

tradiction. It was only a progression in thought. 
For, he continued, the judges who, on various 
previous occasions, sustained that general prin- 
ciple, must have reached their conclusions by the 
light of reason ; to-day we reach a contrary con- 
clusion, but we also do so by the light of reason ; 
therefore, as all these decisions are guided by the 
light of reason they fundamentally coincide, how- 
ever much superficially they may seem to differ.^ 

I have never supposed that this argument carried 
complete conviction either to the legal profession, 
to the public, or to Congress. Certainly, it did 
not convince Mr. Justice Harlan, who failed to 
fathom it, and bluntly expressed his astonishment 
in a dissenting opinion in another cause from which 
I regret to say I can only quote a couple of para- 
graphs, although the whole deserves attentive 
perusal : — 

"If I do not misapprehend the opinion just 
delivered, the Court insists that what was said in 
the opinion in the Standard Oil Case, was in 
accordance with our previous decisions in the 
Trans-Missouri and Joint Traffic Cases, ... if 
we resort to reason. This statement surprises me 

^ Standard Oil Company v. United States, 221 U.S. i. 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 123 

quite as much as would a statement that black 
was white or white was black." 

"But now the Court, in accordance with what 
it denominates the ' rule of reason/ in effect 
inserts in the act the word ' undue, ' which means 
the same as 'unreasonable,' and thereby makes 
Congress say what it did not say. . . . And what, 
since the passage of the act, it has explicitly 
refused to say. ... In short, the Court now, 
by judicial legislation, in effect, amends an Act 
of Congress relating to a subject over which 
that department of the Government has exclusive 
cognizance." ^ :i 

The phenomenon which amazed Mr. Justice 
Harlan is, I conceive, perfectly comprehensible, 
if we reflect a little on the conflict of forces in- 
volved, and on the path of least resistance open to 
an American judge seeking to find for this conflict, 
a resultant. The regulation or the domination of 
monopoly was an issue going to the foundation of 
society, and popular d,nd financial energy had 
come into violent impact in regard to the control 
of prices. Popular energy found vent through 

1 United States v. American Tobacco Company, 221 U.S. 191, 
.192. 



124 THE THEORY OF SOCIAL REVOLUTIONS 

Congress, while the financiers, as financiers always 
have and always will, took shelter behind the 
courts. Congress, in 1890, passed a statute to con- 
strain monopolies, against which financiers pro- 
tested as being a species of confiscation, and which 
the Chief Justice himself thought harsh. To this 
statute the Supreme Court gave a harsh construc- 
tion, as the Chief Justice had more than once 
pointed out, when he was still an associate upon 
the bench. From a series of these decisions an 
appeal had been made to Congress, and the 
Senate, in the report from which I have quoted, 
had sustained the construction given to the 
statute by the majority of his brethren with 
whom the Chief Justice differed. Since the last 
of these decisions, however, the complexion of the 
bench had been considerably changed by new 
appointments, much as it had been after Hep- 
burn V. Griswold, and an opportunity seemed 
to be presented to conciliate every one. 

In any other country than the United States, 
a chief justice so situated would doubtless have 
affirmed the old precedents, permitting himself, at 
most, to point out the mischief which, he thought, 
they worked. Not so a lawyer nurtured under 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 125 , 

the American constitutional system, which breeds 
in the judge the conviction that he is superior 
to the legislator. His instinct, under adequate 
pressure, is always to overrule anything repug- 
nant to him that a legitimate legislative assembly 
may have done. In this instance, had the case 
been one of first impression, nothing would have 
been easier than to have nullified the Sherman Act 
as an unreasonable exercise of the Police Power, 
as judges had been nullifying statutes of which 
they disapproved for a couple of generations 
previously ; but the case was not one of first im- 
pression. On the contrary, the constitutionality 
of the Sherman Act had been so often upheld 
by the judiciary that the Chief Justice himself 
admitted that so long as Congress allowed him 
to use his reason, these "contentions [were] 
plainly foreclosed." Therefore, for him the path 
* of least resistance was to use his reason, and, as a 
magistrate, to amend a statute which Congress 
ought to have amended, but had unreasonably 
omitted to amend. Such was the final and logical 
result of the blending of judicial and legislative 
functions in a court, as they are blended under the 
American constitutional system. 



126 THE THEORY OF SOCIAL REVOLUTIONS 

Nor is it unworthy of remark that the Chief 
Justice, in abstaining from questioning the con- 
stitutionahty of the act, expressly intimated that 
he did so because, by the use of his reason, he 
could make that reasonable and constitutional 
which otherwise might be unreasonable and 
unconstitutional. The defendants pressed the 
argument that destroying the freedom of contract, 
as the Sherman Law destroyed it, was to infringe 
upon the "constitutional guaranty of due process 
of law." To this the Chief Justice rejoined : "But 
the ultimate foundation of all these arguments 
is the assumption that reason may not be resorted 
to in interpreting and applying the statute. . . . 
As the premise is demonstrated to be unsound by 
the construction we haye given the statute," 
these arguments need no further notice.^ 

Should Congress amend the Sherman Act, as 
it seems somewhat disposed to do, by explicitly 
enacting the rule of the Trans-Missouri Case, 
a grave issue would be presented. The Chief 
Justice might submit, and thus avert, temporarily 
at least, a clash ; or, he might hold such an amend- 
ment unconstitutional as denying to the Court 

^ 221 U.S. 69. 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 127 

the right to administer the law according to due 
process. A trial of strength would then be 
imminent. 

Nearly a century ago, Jefferson wrote to Spencer 
Roane, "The Constitution, on this hypothesis, is a 
mere thing of wax in the hands of the judiciary, 
which they may twist and shape into any form 
they please." ^ And however much we may re- 
coil from admitting Jefferson's conclusion to be 
true, it none the less remains the fact that it has 
proved itself to be true, and that the people 
have recognized it to be true, and have taken 
measures to protect themselves by bringing the 
judiciary under the same degree of control which 
they enforce on other legislators. The pro- 
gression has been steady and uniform, each 
advance toward an assumption of the legis- 
lative function by the judiciary having been 
counterbalanced by a corresponding extension 
of authority over the courts by the people. 
First came the protest against Marbury and Madi- 
son in the impeachment of Chase, because, as Giles 
explained, if judges were to annul laws, the domi- 
nant party must have on the bench judges they 

^ To Spencer Roane, Sept. 6, 1819, Ford, 10, 141. 



128 THE THEORY OF SOCIAL REVOLUTIONS 

could trust. Next the Supreme Court of New 
York imagined the theory of the PoHce Power, 
which was adopted by the Supreme Court of the 
United States in 1837. But it stood to reason that 
if judges were to suspend constitutional limitations 
according to their notions of reasonableness, the 
people must have the means of securing judges 
whose views touching reasonableness coincided 
with their own. And behold, within ten years, 
by the constitution of 1846, New York adopted 
an elective judiciary. 

Then followed the Dred Scott Case, the Civil 
War, and the attack on legislative authority in 
Hepburn v. Griswold. Straightway the Court 
received an admonition which it remembered for 
a generation. Somewhat forgetful of this, on 
May 15, 191 1, Chief Justice White gave his opinion 
in the Standard Oil Case, which followed hard 
upon a number of state decisions intended to 
override legislation upon several burning social 
issues. Forthwith, in 191 2, the proposition to 
submit aU decisions involving a question of con- 
stitutional law to a popular vote became an issue 
in a presidential election. Only one step farther 
could be taken, and that we see being takei^ all 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 129 

about US. Experience has shown, in New York 
and elsewhere, that an election, even for a some- 
what short term, does not bring the judge so 
immediately under popular control that decisions 
objectionable to the majority may not be made. 
Hence the recall. The degradation of the judicial 
function can, in theory at least, go no farther. 
Thus the state courts may be said already to be 
prostrate, or likely shortly to become prostrate. 
The United States courts alone remain, and, should 
there be a struggle between them and Congress, 
the result can hardly be doubted. An event has 
recently occurred abroad which we may do well 
to ponder. 

Among European nations England has long 
represented intelligent conservatism, and at the 
heart of her conservatism lay the House of Lords. 
Through many centuries and under many vicissi- 
tudes this ancient chamber had performed func- 
tions of the highest rAoment, until of late it had 
come to occupy a position not dissimilar to that 
which the Supreme Court of the United States 
yet holds. On one side it was the highest legal 
tribunal of the Empire, on the other it was a non- 
representative assembly, seldom indeed originating 



130 THE THEORY OF SOCIAL REVOLUTIONS 

important legislation, but enjoying an absolute 
veto on legislation sent it from the Commons. 
One day in a moment of heated controversy the 
Lords vetoed a bill on which the Commons had 
determined. A dissolution followed and the House 
of Lords, as a political power, faded into a shadow; 
yet, notwithstanding this, its preeminence as a court 
has remained intact. Were a similar clash to 
occur in America no such result could be antici- 
pated. Supposing a President, supported by a 
congressional majority, were to formulate some 
policy no more subversive than that which has 
been formulated by the present British Cabinet, 
and this policy were to be resisted, as it surely 
would be, by potent financial interests, the con- 
flicting forces would converge upon the Supreme 
Court. The courts are always believed to tend 
toward conservatism, therefore they are generally 
supported by the conservative interest, both here 
and elsewhere. In this case a dilemma would be 
presented. Either the judges would seek to give 
expression to "preponderant" popular opinion, 
or they would legislate. In the one event they 
would be worthless as a restraining influence. 
In the other, I apprehend, a blow would fall similar 



AMERICAN COURTS AS LEGISLATIVE CHAMBERS 131 

to the blow which fell upon the House of Lords, 
only it would cut deeper. Shearing the House 
of Lords of political power did not dislocate the 
administration of English justice, because the 
law lords are exclusively judges. They never 
legislate. Therefore no one denounced them. 
Not even the wildest radical demanded that their 
tenure should be made elective, much less that 
they should be subjected to the recall. With us an 
entirely different problem would be presented for 
solution. A tribunal, nominally judicial, would 
throv/ itself across the path of the national move- 
ro.ent. It would undertake to correct a disturb- 
ance of the social equilibrium. But what a 
shifting of the social equilibrium means, and 
what follows upon tampering with it, is a subject 
which demands a chapter by itself. 



CHAPTER IV 

THE SOCIAL EQUILIBRIUM 

I ASSUME it as self-evident that those who, at 
'^' any given moment, are the strongest in any 
^ civihzation, will be those who are at once the 
ruling class, those who own most property, and 
/ those who have most influence on legislation. 
The weaker will fare hardly in proportion to their 
weakness. Such is the order of nature. But, 
since those are the strongest through whom nature 
finds it, for the time being, easiest to vent her 
energy, and as the whole universe is in ceaseless 
change, it follows that the composition of ruling 
\ classes is never constant, but shifts to correspond 
with the shifting environment. When this move- 
ment is so rapid that men cannot adapt themselves 
to it, we call the phenomenon a revolution, and 
' it is with revolutions that I now have to do. 

Nothing is more certain than that the intellec- 
tual adaptability of the individual man is very 
limited. A ruling class is seldom conscious of its 

132 



THE SOCIAL EQUILIBRIUM 153 

own decay, and most of the worst catastrophes of 
history have been caused by an obstinate resist- 
ance to change when resistance was no longer 
possible. Thus while an incessant alteration in 
social equilibrium is inevitable, a revolution is a 
problem in dynamics, on the correct solution of 
which the fortunes of a declining class depend. 

For example, the modem English landlords 
replaced the military feudal aristocracy during 
the sixteenth century, because the landlords had 
more economic capacity and less credulity. The 
men who supplanted the mediaeval soldiers in 
Great Britain had no scruple about robbing the 
clergy of their land, and because of this quality 
they prospered greatly. Ultimately the landlords 
reached high fortune by controlling the boroughs 
which had, in the Middle Ages, acquired the right 
to return members to the House of Commons. 
Their domination lasted long ; nevertheless, about 
1760, the rising tide of the Industrial Revolution 
brought forward another type of mind. Flushed 
by success in the Napoleonic wars the Tories 
failed to appreciate that the social equilibrium, 
by the year 1830, had shifted, and that they no 
longer commanded enough physical force to 



134 THE THEORY OF SOCIAL REVOLUTIONS 

maintain their parliamentary ascendancy. They 
thought they had only to be arrogant to prevail, 
and so they put forward the Duke of Wellington 
as their champion. They could hardly have made 
a poorer choice. As Disraeli has very truly said, 
"His Grace precipitated a revolution which 
might have been delayed for half a century, and 
need never have occurred in so aggravated a 
form." The Duke, though a great general, 
lacked knowledge of England. He began by dis- 
missing William Huskisson from his Cabinet, 
who was not only its ablest member, but perhaps 
the single man among the Tories who thoroughly 
comprehended the industrial age. Huskisson's 
issue was that the franchise of the intolerably 
corrupt East Retford should be given to Leeds 
or Manchester. Having got rid of Huskisson, 
the Duke declared imperiously that he would 
concede nothing to the disfranchised industrial 
magnates, nor to the vast cities in which they 
lived. A dissolution of Parliament followed and 
in the election the Tories were defeated. Al- 
though Wellington may not have been a sagacious 
statesman, he was a capable soldier and he knew 
when he could and when he could not physically 



THE SOCIAL EQUILIBRIUM 135 

fight. On this occasion, to again quote Disraeli, 
"He rather fled than retired." He induced his 
friends to absent themselves from the House of 
Lords and permit the Reform Bill to become law. 
Thus the English Tories, by their experiment 
with the Duke of Wellington, lost their boroughs 
and with them their political preeminence, but at 
least they saved themselves, their families, and the 
rest of their property. As a class they have sur- 
vived to this day, although shorn of much of the 
influence which they might very probably have 
retained had they solved more correctly the prob- 
lem of 1830. In sum, they were not altogether 
impervious to the exigencies of their environment. 
The French Revolution is the classic example of 
the annihilation of a rigid organism, and it is 
an example the more worthy of our attention as 
it throws into terrible relief the process by which 
an intellectually inflexible race may convert 
the courts of law which should protect their 
dechne into the most awful engine for their 
destruction. 

The essence of feudalism was a gradation of 
rank, in the nature of caste, based upon fear. The 
clergy were privileged because the laity believed 



136 THE THEORY OF SOCIAL REVOLUTIONS 

that they could work miracles, and could dispense 
something more vital even than life and death. 
The nobility were privileged because they were 
resistless in war. Therefore, the nobility could 
impose all sorts of burdens upon those who were 
unarmed. During the interval in which society 
centralized and acquired more and more a modern 
economic form, the discrepancies in status re- 
mained, while commensurately the physical or 
imaginative force which had once sustained 
inequality declined, until the social equilibrium 
grew to be extremely unstable. Add to this that 
France, under the monarchy, was ill consolidated. 
The provinces and towns retained the adminis- 
trative complexity of an archaic age, even to local 
tariffs. Thus under the monarchy privilege and 
inequality pervaded every phase of life, and, as 
the judiciary must be, more or less, the mouth- 
piece of society, the judiciary came to be the 
incarnation of caste. 

Speaking broadly, the judicial ofhce, under the 
monarchy, was vendible. In legal language, it 
was an incorporeal hereditament. It could be 
bought and sold and inherited like an advowson, 
or right to dispose of a cure of souls in the English 



THE SOCIAL EQUILIBRIUM 137 

Church, or of a commission in the English army. 
The system was well recognized and widespread 
in the eighteenth century, and worked fairly well 
with the French judiciary for about three hundred 
years, but it was not adapted to an industrial 
environment. The judicial career came to be 
pretty strongly hereditary in a few families, and 
though the members of these families were, on the 
whole, self-respecting, honest, and learned, they 
held office in their own right and not as a public 
trust. So in England members of the House of 
Commons, who sat for nomination boroughs, 
did not, either in fact or theory, represent the in- 
habitants of those boroughs, but patrons ; and in 
like manner French judges could never learn to 
regard themselves as the trustees of the civil 
rights of a nation, but as a component part of a 
class who held a status by private title. Looked 
at as a problem in dynamics the inherent vice 
in all this kind of property and in all this adminis- 
trative system, was the decay, after 1760, of the 
physical force which had engendered it and de- 
fended it. As in England the ascendancy of the 
landlords passed away when England turned 
from an agricultural into an industrial society, 



138 THE THEORY OF SOCIAL REVOLUTIONS 

SO in France priests and nobles fell into contempt, 
when most peasants knew that the Church could 
neither harm by its curse nor aid by its blessing, 
and when commissions in the army were given 
to children or favorites, as a sort of pension, while 
the pith of the nation was excluded from military 
command because it could not prove four quarter- 
ings of nobility. Hardly an aristocrat in France 
had shown military talent for a generation, while, 
when the revolution began, men like Jourdan and 
Kleber, Ney and Augereau, and a host of other 
future marshals and generals had been dismissed 
from the army, or were eating out their hearts 
as petty officers with no hope of advancement. 
Local privileges and inequalities were as intolerable 
as personal. There were privileged provinces 
and those administered arbitrarily by the Crown, 
there were a multiplicity of internal tariffs, and 
endless municipal franchises and monopolies, 
so much so that economists estimated that, 
through artificial restraints, one-quarter of the 
soil of France lay waste. Turgot, in his edict 
on the grain trade, explained that kings in the 
past by ordinance, or the police without royal 
authority, had compiled a body "of legislation 



THE SOCIAL EQUILIBRIUM 139 

equivalent to a prohibition of bringing grain 
into Paris," and this condition was universal. 
One province might be starving and another 
oppressed with abundance. 

Meanwhile, under the stimulant of applied 
science, centralization went on resistlessly, and 
the cost of administration is proportionate to 
centralization. To bear the burden of a central- 
ized government taxes must be equal and move- 
ment free, but here was a rapidly centralizing 
nation, the essence of whose organism was that 
taxes should be unequal and that movement 
should be restricted. 

As the third quarter of the eighteenth century 
closed with the death of Louis XV, all intelligent 
French administrators recognized the dilemma; 
either relief must be given, or France must be- 
come insolvent, and revolution supervene upon 
insolvency. But for the aristocracy revolution 
had no terrors, for they believed that they could 
crush revolution as their class had done for a 
thousand years. 

Robert Turgot was born in 1727, of a respectable 
family. His father educated him for the Church, 
but lack of faith caused him to prefer the magis- 



I40 



THE THEORY OF SOCIAL REVOLUTIONS 



tracy, and on the death of his father he obtained 
a small place in the Court of Parliament. After- 
ward he became a Master of Requests, and served 
« for seven years in that judicial position, before 
he was made Intendant of the Province of Limou- 
sin. Even thus early in life Turgot showed politi- 
cal sagacity. In an address at the Sorbonne he 
supported the thesis that "well-timed reform 
alone averts revolution." Distinguishing himself 
' as Intendant, on the death of Louis XV the King 
called Turgot to the Council of State, and in 
August, 1774, Turgot became Minister of Finance. ^ 
He came in pledged to reform, and by January, 
1776, he had formulated his plan. In that month 
he presented to the King his memorable Six 
Edicts, the first of which was the most celebrated 
state paper he ever wrote. It was the Edict for 
the Suppression of the Corvee. The corvee 
threw the burden of maintaining the highways on 
the peasantry by exacting forced labor. It was 
admittedly the most hateful, the most burden- 
some, and the most wasteful of all the bad taxes 
of the time, and Turgot, following the precedent 
of the Roman Empire, advised instead a general 
highway impost. The proposed impost in itself 



THE SOCIAL EQUILIBRIUM I41 

was not considerable, and would not have been 
extraordinarily obnoxious to the privileged classes, 
but for the principle of equality by which Turgot 
justified it : "The expenses of government having 
for their object the interests of all, all should 
contribute to them; and the more advantages a 
man has, the more that man should contribute." 

Nor was this the most levelling of Turgot's 
arguments. He pointed out that though origi- 
nally the exemption from taxation, which the no- 
bility enjoyed, might have been defended on the 
ground that £he nobles were bound to yield mili- 
tary service without pay, such service had long 
ceased to be performed, while on the contrary 
titles could be bought for money. Hence every 
wealthy man became a noble when he pleased, 
and thus exemption from taxation had come 
to present the line of cleavage between the rich 
and poor. By this thrust the privileged classes 
felt themselves wounded in their vitals, and 
the Parliament of Paris, the essence of privi- 
lege, assumed their defence. To be binding, the 
edicts had to be registered by the Parliament 
among the laws of France, and Parliament de- 
clined to make registration on the ground that 



142 THE THEORY OF SOCIAL REVOLUTIONS 

the edicts were unconstitutional, as subversive 
of the monarchy and of the principle of order. 
The opinion of the court was long, but a single 
paragraph gives its purport: "The first rule of 
justice is to preserve to every one what belongs 
to him: this rule consists, not only in preserv- 
ing the rights of property, but still more in 
preserving those belonging to the person, which 
arise from the prerogative of birth and of posi- 
tion. . . . From this rule of law and equity it 
follows that every system which, under an 
appearance of humanity and beneficence, would 
tend to establish between men an equality of 
duties, and to destroy necessary distinctions, 
would soon lead to disorder (the inevitable re- 
sult of equality), and would bring about the 
overturn of civil society." 

This judicial opinion was an enunciation of the 
archaic law of caste as opposed to the modern 
law of equality, and the cataclysm of the French 
Revolution hinged upon the incapacity of the 
French aristocracy to understand that the envi- 
ronment, which had once made caste a necessity, 
had yielded to another which made caste an im- 
possibility. In vain Turgot and his contempora- 



THE SOCIAL EQUILIBRIUM 143 

ries of the industrial t)^e, represented in England /^ 
by Adam Smith or even by the younger Pitt, 
explained that unless taxes were equalized and 
movement accelerated, insolvency must supervene, 
and that a violent readjustment must follow upon 
insolvency. With their eyes open to the conse- 
quences, the NobiHty and Clergy elected to risk 
revolt, because they did not believe that revolt 
could prevail against them. Nothing is so im- 
pressive in the mighty convulsion which ensued 
as the mental opacity of the privileged orders, 
which caused them to increase their pressure in 
proportion as resistance increased, until finally 
those who were destined to replace them reorgan- 
ized the courts, that they might have an instru- 
ment wherewith to slaughter a whole race down 
to the women and children. No less drastic 
method would serve to temper the rigidity of the 
aristocratic mind. The phenomenon well repays 
an hour of study. 

Insolvency came within a decade after Turgot's 
fall, as Turgot had demonstrated that it must 
come, and an insolvency immediately precipitated 
by the rapacity of the court which had most need 
of caution. The future Louis XVIII, for example, 



144 THE THEORY OF SOCIAL REVOLUTIONS 

who was then known as the Comte de Provence, 
on one occasion, when the government had made a 
loan, appropriated a quarter of it, laughingly ob- 
serving, "When I see others hold out their hands, 
I hold out my hat." In 1787 the need for money 
became imperative, and, not daring to appeal to 
the nation, the King convoked an assembly of 
"notables," that is to say of the privileged. 
Calonne, the minister, proposed pretty much the 
measures of Turgot, and some of these measures 
the "notables" accepted, but the Parliament of 
Paris again intervened and declined to register 
the laws. The Provincial Parliaments followed 
the Parliament of Paris. After this the King 
had no alternative but to try the experiment of 
calling the States- General. They met on May 4, 
1789, and instantly an administrative system, 
which no longer rested upon a social centre of 
gravity, crumbled, carrying the judiciary with it. 
At first the three estates sat separately. If this 
usage had continued, the Clergy and the Nobles 
combined would have annulled every measure 
voted by the Commons. For six weeks the Com- 
mons waited. Then on June 10, the Abbe Sieyes 
said, "Let us cut the cable. It is time." So 



THE SOCIAL EQUILIBRroM 145 

the Clergy and the NobiHty were summoned, and 
some of the Clergy obeyed. This sufficed. On 
motion of Sieyes, the Commons proclaimed them- 
selves the National Assembly, and the orders 
fused. Immediately caste admitted defeat and 
through its mouthpiece, the King, commanded 
the Assembly to dissolve. The Commons re- 
fused to dissolve, and the Nobles prepared for a 
coup d^etat. The foreign regiments, in the pay of 
the government, were stationed about Paris, 
while the Bastille, which was supposed to be im- 
pregnable, was garrisoned with Swiss. In reply, 
on July 14, 1789, the citizens of Paris stormed the 
Bastille. An imstable social equilibrium had been 
already converted by pressure into a revolution. 
Nevertheless, excentric as the centre of gravity 
had now become, it might have been measurably 
readjusted had the privileged classes been able to 
reason correctly from premise to conclusion. 
Men like Lafayette and Mirabeau still controlled 
the Assembly, and if the; King and the Nobility 
had made terms, probably the monarchy might 
have been saved, certainly the massacres would 
have been averted. As a decaying class is apt 
to do, the Nobility did that which was worst for 



146 THE THEORY OF SOCIAL REVOLUTIONS 

themselves. Becoming at length partly conscious 
of a lack of physical force in France to crush the 
revolution, a portion of the nobility, led by the 
Comte d'Artois, the future Charles X, fled to 
Germany to seek for help abroad, while the bolder 
remained to plan an attack on the rebellion. 
On October i, 1789, a great military banquet was 
given at Versailles. The King and Queen with 
the Dauphin were present. A royahst demonstra- 
tion began. The bugles sounded a charge, the 
officers drew their swords, and the ladies of the 
court tore the tri-color from the soldiers' coats 
and replaced it with the white cockade. On Octo- 
ber 5, a vast multitude poured out of Paris, and 
marched to Versailles. The next day they broke 
into the palace, killed the guards, and carried 
the King and Queen captive to the Tuileries. But 
Louis was so intellectually limited that he could 
not keep faith with those who wished him well. 
On July 14, 1790, the King swore, before half a 
million spectators, to maintain the new constitu- 
tion. In that summer he was plotting to escape 
to Metz and join the army which had been 
collected there under the Marquis de Bouille, 
while Bouille himself, after the rising at Nancy, 



THE SOCIAL EQUILIBRIUM 147 

was busy in improving discipline by breaking on 
the wheel a selection of the soldiers of the Swiss 
regiment of Chateauvieux which had refused to 
march against Paris on the 14th of July, 1789. 
In October, 1790, Louis wrote to the King of 
Spain and other sovereigns to pay no heed to his 
concessions for he only yielded to duress, and all 
this even as Mirabeau made his supreme ejffort 
to save those who were fixed upon destroying 
themselves. Mirabeau sought the King and of- 
fered his services. The court sneered at him as 
a dupe. The Queen wrote, "We make use of 
Mirabeau, but we do not take him seriously." 
When Mirabeau awoke to his predicament, he 
broke out in mixed wrath and scorn: "Of what 
are these people thinking? Do they not see the 
abyss yawning at their feet ? Both the King and 
Queen will perish, and you will live to see the 
rabble spurn their corpses." 

The King and Queen, the Nobility and Clergy, 
could not see the abyss which Mirabeau saw, any 
more than the lawyers could see it, because of the 
temper of their minds. In the eye of caste 
Europe was not primarily divided into nations to 
whom allegiance was due, but into superimposed 



148 THE THEORY OF SOCIAL REVOLUTIONS 

orders. He who betrayed his order committed 
[the unpardonable crime. Death were better 
than that. But to the true aristocrat it was in- 
conceivable that serfs could ever vanquish nobles 
in battle. Battle must be the final test, and the 
whole aristocracy of Europe was certain, French- 
men knew, to succor the French aristocracy in 
distress. 

So in the winter of 1790 the French fugitives 
congregated at Coblentz on the German frontier, 
persuaded that they were performing a patriotic 
duty in organizing an invasion of their country 
even should their onset be fatal to their relatives 
and to their King. And Louis doubted not that 
he also did his duty as a trustee of a divine com- 
mission when he in one month swore, before the 
Assembly, to maintain the constitution tendered 
him, and in the next authorized his brother, the 
Comte d'Artois, to make the best combination 
he could among his brother sovereigns for the 
gathering of an army to assert his divine prerog- 
ative. On June 21, 1791, Louis fled, with his 
whole family, to join the army of Bouille, with 
intent to destroy the entire race of traitors from 
Mirabeau and Lafayette down to the peasants. 



THE SOCIAL EQUILIBRIUM 149 

He managed so ill that he was arrested at 
Varennes, and brought back whence he came, but 
he lied and plotted still. 

Two years had elapsed between the meeting 
of the States-General and the flight to Varennes, 
and in that interval nature had been busy in 
selecting her new favored class. Economists 
have estimated that the Church owned one-third 
of the land of Europe during the Middle Ages. 
However this may have been she certainly held 
a very large part of France. On April 16, 1790, 
the Assembly declared this territory to be national 
property, and proceeded to sell it to the peasantry 
by means of the paper assignats which were issued 
for the purpose, and were supposed to be secured 
upon the land. The sales were generally made 
in little lots, as the sales were made of the public 
domain in Rome under the Licinian Laws, and 
with an identical effect. The Emperor of Ger- 
many and the Kjng of Prussia met at Pilnitzin 
August, 1 791, to consider the conquest of France, 
and, on the eve of that meeting, the Assembly 
received a report which stated that these lands to 
the value of a thousand million francs had already 
been distributed, and that sales were going on. 



150 THE THEORY OF SOCIAL REVOLUTIONS 

It was from this breed of liberated husbandmen 
that France drew the soldiers who fought her 
battles and won her victories for the next five 
and twenty years. 

Assuming that the type of the small French 
landholder, both rural and urban, had been pretty 
well developed by the autumn of 1791, the crisis 
came rapidly, for the confiscations which created 
this new energy roused to frenzy, perhaps the most 
formidable energy which opposed it. The Church 
had not only been robbed of her property but had 
been wounded in her tenderest part. By a de- 
cree of June 12, 1790, the Assembly transferred 
the allegiance of the French clergy from the Pope 
to the state, and the priesthood everywhere vowed 
revenge. In May, 1791, the Marquis de la 
Rouerie, it is true, journeyed from his home in 
Brittany to Germany to obtain the recognition 
of the royal princes for the insurrection which 
he contemplated in La Vendee, but the insurrec- 
tion when it occurred was not due so much to 
him or his kind as to the influence of the non- 
juring priests upon the peasant women of the 
West. 

The mental condition of the French emigrants 



THE SOCIAL EQUILIBRIUM 151 

at Coblentz during this summer of 1791 is nothing 
short of a psychological marvel. They regarded 
the Revolution as a jest, and the flight to the Rhine 
as a picnic. These beggared aristocrats, male 
and female, would throw their money away by 
day among the wondering natives, and gamble 
among themselves at night. If they ever thought 
of the future it was only as the patricians in Pom- 
pey's camp thought; who had no time to prepare 
for a campaign against Caesar, because they were 
absorbed in distributing offices among themselves, 
or in inventing torments to inflict on the rebels. 
Their chief anxiety was lest the resistance should 
be too feeble to permit them to glut themselves 
with blood. The creatures of caste, the emigrants 
could not conceive of man as a variable animal, 
or of the birth of a race of warriors under their 
eyes. To them human nature remained con- 
stant. Such, they believed, was the immutable 
will of God. 

So it came to pass that, as the Revolution took 
its shape, a vast combination among the antique 
species came semi-automatically into existence, 
pledged to envelop and strangle the rising type 
of man, a combination, however, which only 



152 THE THEORY OF SOCIAL REVOLUTIONS 

attained to maturity in 1793, after the execution 
of the King. Leopold II, Emperor of Germany, 
had hitherto been the chief restraining influence, 
both at Pihiitz and at Paris, through his corre- 
spondence with his sister, Marie Antoinette; but 
Leopold died on March i, 1792, and was suc- 
ceeded by Francis II, a fervid reactionist and an 
obedient son of the Church. Then caste fused 
throughout Germany, and Prussia and Austria 
prepared for war. Rouerie had returned to Brit- 
tany and only awaited the first decisive foreign 
success to stab the Revolution in the back. Eng- 
land also was ripening, and the instinct of caste, 
incarnated in George III, found its expression 
through Edmund Burke. In 1790 Burke pub- 
lished his "Reflections," and on May 6, 1791, in a 
passionate outbreak in the House of Commons, 
he renounced his friendship with Fox as a traitor 
to his order and his God. Men of Burke's tem- 
perament appreciated intuitively that there could 
be no peace between the rising civilization and the 
old, one of the two must destroy the other, and 
very few of them conceived it to be possible that 
the enfranchised French peasantry and the small 
bourgeoisie could endure the shock of all that, in 



THE SOCIAL EQUILIBRIUM 153 

their eyes, was intelligent, sacred, and martial in 
the.. world. 

Indeed, aristocracy had, perhaps, some justifica- 
tion for arrogance, since the revolt in France fell 
to its lowest depth of impotence between the 
meeting at Pilnitz in August, 1791, and the reor- 
ganization of the Committee of Public Safety in 
July, 1793. Until August, 1792, the executive 
authority remained with the King, but the court 
of Louis was the focus of resistance to the Revolu- 
tion, and even though a quasi-prisoner the King 
was still strong. Monarchy had a firm hold on 
liberal nobles like Mirabeau and Lafayette, on 
adventurers hke Dumouriez, and even on lawyers 
like Danton who shrank from excessive cruelty. 
Had the pure Royalists been capable of enough 
intellectual flexibility to keep faith upon any 
reasonable basis of compromise, even as late as 
1792, the Revolution might have been benign. 
In. June, 1792, Lafayette, who commanded the 
army of the North, came to Paris and not only 
ventured to lecture the Assembly on its duty, but 
offered to take Louis to his army, who would pro- 
tect him against the Jacobins. The court laughed 
at Lafayette as a Don Quixote, and betrayed his 



154 THE THEORY OF SOCIAL REVOLUTIONS 

plans to the enemy. "I had rather perish," said 
the Queen, "than be saved by M. de Lafayette 
and his constitutional friends." And in this she 
only expressed the conviction which the caste to 
which she belonged held of their duty. Cazales 
protested to the Assembly, "Though the King 
perish, let us save the kingdom." The Arch- 
duchess Christina wrote to her sister, Marie An- 
toinette, "What though he be slain, if we shall 
triumph," and Conde, in December, 1790, swore 
that he would march on Lyons, "come what might 
to the King." 

France was permeated with archaic thought 
which disorganized the emerging society until it 
seemingly had no cohesion. To the French emi- 
grant on the Rhine that society appeared like a 
vile phantom which had but to be exorcised to 
vanish. And the exorcism to which he had re- 
course was threats of vengeance, threats which 
before had terrified, because they had behind 
them a force which made them good. Torture 
had been an integral part of the old law. The 
peasant expected it were he insubordinate. Death 
alone was held to be too little to inspire respect 
for caste. Some frightful spectacle was usually 



THE SOCIAL EQUILIBRIUM 155 

provided to magnify authority. Thus Bouille 
broke on the wheel, while the men were yet alive, 
every bone in the bodies of his soldiers when they 
disobeyed him ; and for scratching Louis XV, with 
a knife, Damiens, after indescribable agonies, was 
torn asunder by horses in Paris, before an im- 
mense multitude. The French emigrants believed 
that they had only to threaten with a similar fate 
men like Kellermann and Hoche to make them 
flee without a blow. What chiefly concerned 
the nobles, therefore, was not to evolve a masterly 
campaign, but to propound the fundamental prin- 
ciples of monarchy, and to denoimce an awful 
retribution on insurgents. 

By the middle of July, 1792, the Prussians were 
ready to march, and emperors, kings, and generals 
were meditating manifestoes. Louis sent the 
joumahst Mallet du Pan to the Duke of Bruns- 
wick, the commander-in-chief, to assist him in his 
task. On July 24, and on August 4, 1792, the 
King of Prussia laid down the law of caste as em- 
phatically as had the Parliament of Paris some 
twenty years before. On July 25, the Duke of 
Brimswick pronounced the doom of the conquered. 
I come, said the King of Prussia, to prevent 



156 THE THEORY OF SOCIAL REVOLUTIONS 

the incurable evils which will result to France, to 
Europe and to all mankind from the spread of 
the spirit of insubordination, and to this end I 
shall estabhsh the monarchical power upon a 
stable basis. For, he continued in the later 
proclamation, "the supreme authority in France 
being never ceasing and indivisible, the King could 
neither be deprived nor voluntarily divest himself 
of any of the prerogatives of royalty, because he 
is obliged to transmit them entire with his own 
crown to his successors." 

The Duke of Brunswick's proclamation con- 
tained some clauses written expressly for him by 
Mallet du Pan, and by Limon the Royalist. 

If the Palace of the Tuileries be forced, if the 
least violence be offered to their Majesties, if 
they are not immediately set at liberty, then will 
the King of Prussia and the Emperor of Germany 
inflict " on those who shall deserve it the most 
exemplary and ever-memorable avenging punish- 
ments." 

These proclamations reached Paris on July 28, 
and simultaneously the notorious Fersen wrote 
the Queen of France, "You have the manifesto, 
and you should be content." 



THE SOCIAL EQUILIBRIUM 1 57 

The court actually believed that, having in- 
sulted and betrayed Lafayette and all that body 
of conservative opinion which might have steadied 
the social equilibrium, they could rely on the 
fidelity of regiments filled with men against 
whom the emigrants and their alHes, the Prussians, 
had just denounced an agonizing death, such as 
Bouille's soldiers had undergone, together with the 
destruction of their homes. 

All the world knows what followed. The 
Royalists had been gathering a garrison for the 
Tuileries ever since Lafayette's visit, in anticipa- 
tion of a trial of strength with the Revolutionists. 
They had brought thither the Swiss guard, fifteen 
hundred strong; the palace was full of Royalist 
gentlemen; Mandat, who commanded the Na- 
tional Guard, had been gained over. The ap- 
proaches were swept by artillery. The court was 
very confident. On the night of August 9, Mandat 
was murdered, an insurrectional committee seized 
the City Hall, and when Louis XVI came forth 
to review the troops on the morning of the loth 
of August, they shouted, "Vive la Nation" and 
deserted. Then the assault came, the Swiss guard 
was massacred, the Assembly thrust aside, and 



158 THE THEORY OF SOCIAL REVOLUTIONS 

the royal family were seized and conveyed to the 
Temple. There the monarchy ended. Thus far 
had the irrational opposition of a moribund type 
thrown into excentricity the social equilibrium 
of a naturally conservative people. They were 
destined to drive it still farther. 

In this supreme moment, while the Prussians 
were advancing, France had no stable government 
and very imperfect means of keeping order. All 
the fighting men she could muster had marched 
to the frontier, and, even so, only a demoralized 
mass of levies, imder Dumouriez and Kellermann, 
lay between the most redoutable regiments of the 
world and Paris. The emigrants and the Germans 
thought the invasion but a military promenade. 
At home treason to the government hardly cared 
to hide itself. During much of August the streets 
of Paris swarmed with Royalists who cursed the 
Revolution, and with priests more bitter than the 
Royalists. Under the windows of Louis, as he lay 
in the Temple, there were cries of "Long live the 
King," and in the prisons themselves the nobles 
drank to the allies and corresponded with the 
Prussians. Finally, Roland, who was minister, 
so far lost courage that he proposed to withdraw 



THE SOCIAL EQUILIBRIUM 159 

beyond the Loire, but Danton would hear of no 
retreat. "De I'audace," he cried, "encore de 
I'audace, et toujours de I'audace." 

The Assembly had not been responsible for the 
assault on the Tuileries on August 10, 1792. 
Filled with conservatives, it lacked the energy. 
That movement had been the work of a knot of 
radicals which had its centre in Danton's Club of 
the Cordeliers. Under their impulsion the sec- 
tions of Paris chose commissioners who should 
take possession of the City Hall and eject the 
loyalist Council. They did so, and thus Danton 
became for a season the Minister of Justice and 
the foremost man in France. Danton was a semi- 
conservative. His tenure of power was the last 
possibility of averting the Terror. The Royalists, 
whom he trusted, themselves betrayed him, and 
Danton fell, to be succeeded by Robespierre and 
his political criminal courts. Meanwhile, on 
September 20, 1792, the Prussian column recoiled 
before the fire of Kellermann's mob of "vagabonds, 
cobblers and tailors," on the slope of Valmy, 
and with the victory of Valmy, the great eigh- 
teenth-century readjustment of the social equi- 
librium of Europe passed into its secondary stage. 



CHAPTER V 

POLITICAL COURTS 

In the eye of philosophy, perhaps the most 
alluring and yet illusive of all the phenomena 
presented by civilization is that which we have 
been considering. Why should a type of mind 
which has developed the highest prescience when 
advancing along the curve which has led it to 
ascendancy, be stricken with fatuity when the 
summit of the curve is passed, and when a mis- 
calculation touching the velocity of the descent 
must be destruction? 

Although this phenomenon has appeared pretty 
regularly, at certain intervals, in the development 
of every modern nation, I conceive its most 
illuminating example to be that intellectual limi- 
tation of caste which, during the French Revolu- 
tion, led to the creation of those political criminal 
tribunals which reached perfection with Robes- 
pierre. 

When coolly examined, at the distance of a 
1 60 



POLITICAL COURTS l6l 

century, the Royalist combination for the sup- 
pression of equality before the law, as finally 
evolved in 1792, did not so much lack military 
intelligence, as it lacked any approximate compre- 
hension of the modern mind. The Royalists 
proposed to reestablish privilege, and to do this 
they were ready to immolate, if necessary, their 
King and Queen, and ail of their own order who 
stayed at home to defend them. Indeed, speak- 
ing generally, they valued Louis XVI, living, 
cheaply enough, counting him a more considerable 
asset if dead. "What a noise it would make 
throughout Europe," they whispered among them- 
selves, "if the rabble should kill the King." 

Nor did Marie Antoinette delude herself on 
this score. At Pilnitz, in 1791, the German 
potentates issued a declaration touching France 
which was too moderate to suit the emigrants, 
who published upon it a commentary of their own. 
This commentary was so revolting that when the 
Queen read her brother-in-law's signature ap- 
pended to it, she exclaimed — " Cain." 

The Royalist plan of campaign was this : They 
reckoned the energy of the Revolution so low that 
they counted pretty confidently, in the summer 



l62 THE THEORY OF SOCIAL REVOLUTIONS 

of 1792, on the ability of their party to defend the 
Tuileries against any force which could be brought 
against it; but assuming that the Tuileries could 
not be defended, and that the King and Queen 
should be massacred, they believed that their 
own position would be improved. Their monar- 
chical allies would be thereby violently stimulated. 
It was determined, therefore, that, regardless of 
consequences to their friends, the invading army 
should cross the border into Lorraine and, march- 
ing by way of Sierk and Rodemach, occupy 
Chalons. Their entry into Chalons, which they 
were confident could not be held against them, 
because of the feeling throughout the country, 
was to be the signal for the rising in Vendee and 
Brittany which should sweep down upon Paris 
from the rear and make the capital untenable. 
At Chalons the allies would be but ninety 
miles from Paris, and then nothing would remain 
but vengeance, and vengeance the more complete 
the greater the crime had been. 

All went well with them up to Valmy. The 
German advance on August 11, 1792, reached 
Rodemach, and on August 19, the bulk of the 
Prussian army crossed the frontier at Redagne. 



POLITICAL COURTS 163 

On August 20, 1792, Longwy was invested and 
in three days capitulated. In the camp of the 
Comte d'Artois "there was not one of us," wrote 
Las Casas, "who did not see himself, in a fort- 
night, triumphant, in his own home, surrounded 
by his humbled and submissive vassals." At 
length from their bivouacs at Saint-Remy and at 
Suippes the nobles saw in the distance the towers 
of Chalons. 

The panic at Chalons was so great that orders 
were given to cut the bridge across the Marne, 
but it was not until about September 2, that the 
whole peril was understood at Paris. It is true 
that for several weeks the government had been 
aware that the West was agitated and that 
Rouerie was probably conspiring among the 
Royalists and nonjuring priests, but they did not 
appreciate the imminence of the danger. On 
September 3, at latest, Danton certainly heard 
the details of the plot from a spy, and it was 
then, while others quailed, that he incited 
Paris to audacity. This was Danton's culmina- 
tion. 

As we look back, the weakness of the Germans 
seems to have been psychological rather than 



l64 THE THEORY OF SOCIAL REVOLUTIONS 

physical. At Valmy the numbers engaged were 
not unequal, and while the French were, for the 
most part, raw and ill-compacted levies, with few 
trained officers, the German regiments were those 
renowned battalions of Frederick the Great whose 
onset, during the Seven Years' War, no adversary 
had been able to endure. Yet these redoubtable 
Prussians fell back in confusion without having 
seriously tried the French position, and their 
officers, apparently, did not venture to call upon 
them to charge again. In vain the French gentle- 
men implored the Prussian King to support them 
if they alone should storm Kellermann's batteries. 
Under the advice of the Duke of Brunswick the 
King decided on retreat. It is said that the Duke 
had as little heart in the war as Charles Fox, or, 
possibly, Pitt, or as his own troops. And yet 
he was so strong that Dumouriez, after his victory, 
hung back and offered the invaders free passage 
lest the Germans, if aroused, should turn on him 
and fight their way to the Marne. 

To the emigrants the retreat was terrible. It 
was a disaster from which, as a compact power, 
they never recovered. The rising in Vendee tem- 
porarily collapsed with the check at Chalons, 



POLITICAL COURTS 165 

and they were left literally naked unto their 
enemy. Some of them returned to their homes,, 
preferring the guillotine to starvation, others, 
disguised in peasants' blouses, tried to reach 
Rouerie in La Vendee, some died from hardship, 
some committed suicide, while the bulk regained 
Liege and there waited as suppliants for assist- 
ance from Vienna. But these unfortunate men, 
who had entered so gayly upon a conflict whose 
significance they could not comprehend, had by 
this time lost more than lands and castles. Many 
of them had lost wives and children in one of 
the most frightful butcheries of history, and a 
butchery for which they themselves were respon- 
sible, because it was the inevitable and logical 
effect of their own intellectual limitations. 

When, after the affair of August 10, Danton 
and his party became masters of the incipient 
republic, Paris lay between two perils whose rela- 
tive magnitude no one could measure. If Chalons 
fell. Vendee would rise, and the Republicans of 
the West would be massacred. Five months later 
Vendee did rise, and at Machecoul the patriots 
were slaughtered amidst nameless atrocities, 
largely at the instigation of the priests. In 



1 66 THE THEORY OF SOCIAL REVOLUTIONS 

March, 1793, one hundred thousand peasants 
were under arms. 

Clearly the West could not be denuded of 
troops, and yet, if Chalons were to be made good, 
every available man had to be hurried to Keller- 
mann, and this gigantic effort fell to the lot of a 
body of young and inexperienced adventurers 
who formed what could hardly be dignified with 
the name of an organized administration. 

For a long time Marat, with whom Danton 
had been obliged to coalesce, had been insisting 
that, if the enemy were to be resisted on the 
frontier, Paris must first be purged, for Paris 
swarmed with Royalists wild for revenge, and 
who were known to be arming. Danton was not 
yet prepared for extermination. He instituted 
domiciliary visits. He made about three thou- 
sand arrests and seized a quantity of muskets, 
but he liberated most of those who were under 
suspicion. The crisis only came with the news, 
on September 2, of the investment of Verdun, 
when no one longer could doubt that the net 
was closing about Paris. Verdun was but three 
or four days' march from Chalons. When the 
Duke of Brunswick crossed the Marne and 



POLITICAL COURTS 167 

Brittany revolted, the government would have 
to flee, as Roland proposed, and then the Royalists 
would burst the gates of the prisons and there 
would be another Saint Bartholomew. 

Toward four o'clock in the afternoon of Sep- 
tember 2, 1792, the prison of the Abbaye was 
forced and the massacres began. They lasted 
until September 6, and through a circular sent 
out by Marat they were extended to Lyons, to 
Reims, and to other cities. About 1600 prisoners 
were murdered in Paris alone. Hardly any one 
has ever defended those slaughters. Even Marat 
called them "disastrous," and yet no one inter- 
fered. Neither Danton, nor Roland, nor the 
Assembly, nor the National Guard, nor the City 
of Paris, although the two or three hundred 
rufhans who did the work could have been dis- 
persed by a single company of resolute men, had 
society so willed it. When Robespierre's time 
came he fell almost automatically. Though the 
head of the despotic "Committee of Public 
Safety," and nominally the most powerful man 
in France, he was sent to execution like the vilest 
and most contemptible of criminals by adver- 
saries who would not command a regiment. 



1 68 THE THEORY OF SOCL\L REVOLUTIONS 

The inference is that the September massacres, 
which have ever since been stigmatized as the 
deepest stain upon the Revolution, were, veri- 
tably, due to the Royalists, who made with the 
Republicans an issue of self-preservation. For 
this was no common war. In RoyaHst eyes it 
was a servile revolt, and was to be treated as 
servile revolts during the Middle Ages had always 
been treated. Again and again, with all solem- 
nity, the RoyaUsts had declared that were they 
to return as conquerors no stone of Paris should 
be left standing on another, and that the inhabi- 
tants should expire in the ashes of their homes on 
the rack and the wheel. 

Though Danton had many and obvious weak- 
nesses he was a good lawyer, and Danton per- 
ceived that though he might not have been able 
to prevent the September massacres, and although 
they might have been and probably were in- 
evitable imder the tension which prevailed, yet 
that any court, even a political court, would be 
better than Marat's mob. Some months later he 
explained his position to the Convention when it 
was considering the erection of the tribunal 
which finally sent Danton himself to the scaffold. 



POLITICAL COURTS 169 

"Nothing is more difficult than to define a polit- 
ical crime. But, if a simple citizen, for any or- 
dinary crime, receives immediate punishment, if 
it is so difficult to reach a political crime, is it 
not necessary that extraordinary laws ... in- 
timidate the rebels and reach the culpable? 
Here public safety requires strong remedies and 
terrible measures. I see no compromise between 
ordinary forms and a revolutionary tribunal. 
History attests this truth; and since members 
have dared in this assembly to refer to those 
bloody days which every good citizen has la- 
mented, I say that, if such a tribunal had then 
existed, the people who have been so often and 
so cruelly reproached for them, would never have 
stained them with blood ; I say, and I shall have 
the assent of all who have watched these move- 
ments, that no human power could have checked 
the outburst of the national vengeance." 

In this perversion of the courts lay, as I under- 
stand it, the foulest horror of the French Revolu- 
tion. It was the effect of the rigidity of privilege, 
a rigidity which found its incarnation in the judi- 
ciary. The constitutional decisions of the par- 
liaments under the old regime would alone have 



I70 THE THEORY OF SOCIAL REVOLUTIONS 

made their continuance impossible, but the 
worst evil was that, after the shell crumbled, the 
mind within the shell survived, and discredited 
the whole regular administration of justice. 
When the National Assembly came to examine 
grievances it found protests against the judicial 
system from every corner of France, and it re- 
ferred these petitions to a committee which re- 
ported in August, 1789. Setting aside the cen- 
tralization and consolidation of the system as 
being, for us, immaterial, the committee laid 
down four leading principles of reform. First, 
purchase of place should be abolished, and judicial 
office should be recognized as a public trust. 
Second, judges should be confined to applying, 
and restrained from interpreting, the law. That 
is to say, the judges should be forbidden to legis- 
late. Third, the judges should be brought into 
harmony with public opinion by permitting the 
people to participate in their appointment. 
Fourth, the tendency toward rigor in criminal 
cases, which had become a scandal under the old 
regime, should be tempered by the introduction 
of the jury. Bergasse proposed that judicial 
appointments should be made by the executive 



POLITICAL COURTS 17 1 

from among three candidates selected by the 
provincial assemblies. After long and very re- 
markable debates the plan was, in substance, 
adopted in May, 1790, except that the Assembly 
decided, by a majority of 503 to 450, that the 
judges should be elected by the people for a term 
of six years, without executive interference. In 
the debate Cazales represented the conservatives, 
Mirabeau the liberals. The vote was a test vote 
and shows how strong the conservatives were in 
the Assembly up to the reorganization of the 
Clergy in July, 1790, and the electoral assemblies 
of the districts, which selected the judges, seem, 
on the whole, to have been rather more conserva- 
tive than the Assembly. In the election not a 
sixth of those who were enfranchised voted for 
the delegates who, in turn, chose the judges, and 
these delegates were usually either eminent lawyers 
themselves, or wealthy merchants, or men of 
letters. The result was a bench not differing 
much from an old parliament, and equally in- 
capable of understanding the convulsion about 
them. 

Installed early in 179 1, not a year elapsed before 
these magistrates became as Ul at ease as had 



172 THE THEORY OF SOCIAL REVOLUTIONS 

been those whom they displaced, and in March, 
1792, Jean Debry formally demanded their recall, 
although their terms properly were to expire in 
1796. During the summer of 1792 they sank 
into contempt and, after the massacres, the Legis- 
lative Assembly, just before its dissolution, pro- 
vided for a new constituency for the judicial elec- 
tions. This they degraded so far that, out of 
fifty-one magistrates to be chosen in Paris, only 
twelve were professionally trained. Nor did the 
new courts inspire respect. After the loth of 
August one or two special tribunals were organ- 
ized to try the Swiss Guard who surrendered in 
the Palace, and other political offenders, but 
these proved to be so ineffective that Marat 
thrust them aside, and substituted for them his 
gangs of murderers. No true and permanent 
political court was evolved before Danton had to 
deal with the treason of Dumouriez, nor was this 
tribunal perfected before Danton gave way to 
the Committee of Public Safety, when French 
revolutionary society became incandescent, 
through universal attack from without and through 
insurrection within. 

Danton, though an orator and a lawyer, pos- 



POLITICAL COURTS 173 

sibly even a statesman, was not competent to 
cope with an emergency which exacted from a 
minister administrative genius like that of Car- 
not. Danton's story may be briefly told. At 
once after Valmy the Convention established the 
Republic; on January 21, 1793, Louis was be- 
headed; and between these two events a new 
movement had occurred. The Revolutionists felt 
intuitively that, if they remained shut up at home, 
with enemies without and traitors within, they 
would be lost. If the new ideas were sound they 
would spread, and Valmy had proved to them 
that those ideas had already weakened the invad- 
ing armies. Danton declared for the natural 
boundaries of France, — the Rhine, the Alps, and 
the ocean, — and the Convention, on January 29, 
1 793, threw Dumouriez on Holland. This provoked 
war with England, and then north, south, and 
east the coalition was complete. It represented 
at least half a million fighting men. Danton, 
having no military knowledge or experience, fixed 
his hopes on Dumouriez. To Danton, Dumouriez 
was the only man who could save France. On 
November 6, 1792, Dumouriez defeated the Aus- 
trians at Jemmapes; on the 14th, he entered 



174 THE THEORY OF SOCL\L REVOLUTIONS 

Brussels, and Belgium lay helpless before him. 
On the question of the treatment of Belgium, the 
schism began which ended with his desertion. 
Dumouriez was a conservative who plotted for a 
royal restoration under, perhaps, Louis Philippe. 
The Convention, on the contrary, determined to 
revolutionize Belgium, as France had been revolu- 
tionized, and to this end Cambon proposed to 
confiscate and sell church land and emit assignats. 
Danton visited Dumouriez to attempt to pacify 
him, but found him deeply exasperated. Had 
Danton been more sagacious he would have been 
suspicious. Unfortimately for him he left Du- 
mouriez in command. In February, Dumouriez 
invaded Holland and was repulsed, and he then 
fell back to Brussels, not strong enough to march 
to Paris mthout support, it is true, but probably 
expecting to be strong enough as soon as the Ven- 
dean insurrection came to a head. Doubtless he 
had relations with the rebels. At all events, on 
March lo, the insurrection began with the mas- 
sacre of Machecoid, and on March 12, 1793, Du- 
mouriez wrote a letter to the Convention which 
was equivalent to a declaration of war. He then 
tried to corrupt his army, but failed, and on 



POLITICAL COURTS 175 

April 4, 1793, fled to the Austrians. Meanwhile, 
La Vendee was in flames. To appreciate the situa- 
tion one must read Carnot's accoimt of the border 
during these weeks when he alone, probably, 
averted some grave disaster. For my purpose it 
suffices to say that the pressure was intense, and 
that this intense pressure brought forth the 
Revolutionary Tribunal, or the political court. 

On March 10, 1793, the Convention passed a 
decree constituting a court of five judges and a 
jury, to be elected by the Convention. To these 
was joined a public prosecutor. Fouquier-Tin- 
viUe afterward attained to a sombre fame in 
this position. Six members of the Convention 
were to sit as a commission to supervise drawing 
the indictments, the preparation of evidence, and 
also to advise the prosecutor. The punishments, 
under the limitations of the Penal Code and other 
criminal laws, were to be within the discretion of 
the court, whose judgments were to be final.^ 
Death was accompanied by confiscation of 
property. 

Considering that this was an extraordinary 
tribunal, working under extreme tension, which 

^ Histoire du Tribunal Revolutionaire de Paris, H. Wallon, i, 57. 



176 THE THEORY OF SOCIAL REVOLUTIONS 

tried persons against whom usually the evidence 
was pretty conclusive, its record for the first six 
months was not discreditable. Between April 6 
and September 21, 1793, it rendered sixty-three 
sentences of death, thirteen of transportation, and 
thirty-eight acquittals. The trials were held pa- 
tiently, testimony was heard, and the juries duly 
deliberated. Nevertheless the Terror deepened 
as the stress upon the new-born republic in- 
creased. Nothing more awful can be imagined 
than the ordeal which France endured between 
the meeting of the Convention in September, 1792, 
and the completion of the Committee of Public 
Safety in August, 1793. Hemmed in by enemies, 
the revolution glowed in Paris like molten lava, 
while yet it was torn by faction. Conservative 
opinion was represented by the Girondists, rad- 
ical opinion by the Mountain, and between the two 
lay the Plain, or the majority of the Conven- 
tion, who embodied the social centre of gravity. 
As this central mass swayed, so did supremacy 
incline. The movement was as accurate as that 
of any scientific instrument for registering any 
strain. Dumouriez's treason in April left the 
northern frontier open, save for a few fortresses 



POLITICAL COURTS 177 

which still held out. When those should fall 
the enemy could make a junction with the rebels 
in Vendee. Still the Girondists kept control, 
and even elected Isnard, the most violent among 
them, President of the Convention. Then they had 
the temerity to arrest a member of the Commune 
of Paris, which was the focus of radicalism. That 
act precipitated the struggle for survival and with 
it came the change in equilibrium. On June 2, 
Paris heard of the revolt of Lyons and of the 
massacre of the patriots. The same day the Sec- 
tions invaded the Convention and expelled from 
their seats in the Tuileries twenty-seven Girondists. 
The Plain or Centre now leant toward the Moun- 
tain, and, on July 10, the Committee of Public 
Safety, which had been first organized on April 
6, 1793, directly after Dumouriez's treason, was 
reorganized by the adition of men like Saint- Just 
and Couthon, with Prieur, a lawyer of ability and 
energy, for President. On July 12, 1793, the 
Austrians took Conde, and on July 28, Valen- 
ciennes; while on July 25, Kleber, starving, sur- 
rendered Mayence. Nothing now but their own 
inertia stood between the allies and La Vendee. 
Thither indeed Kellermann's men were sent, since 



178 THE THEORY OF SOCIAL REVOLUTIONS 

they had promised not to serve against the coali- 
tion for a year, but even of these a division was 
surrounded and cut to pieces in the disaster of 
Torfou. A most ferocious civil war soon raged 
throughout France. Caen, Bordeaux, Lyons, 
Marseilles, declared against the Convention. The 
whole of the northwest was drenched in blood by 
the Chouans. Sixty departments were in arms. 
On August 28 the Royalists surrendered Toulon 
to the English, who blockaded the coasts and 
supplied the needs of the rebels. About Paris 
the people were actually starving. On July 27 
Robespierre entered the Committee of Safety; 
Carnot, on August 14. This famous committee 
was a council of ten forming a pure dictatorship. 
On August 16, the Convention decreed the Levee 
en Masse. 

When Carnot became Minister of War to this 
dictatorship the Republic had 479,000 demor- 
alized soldiers with the colors, under beaten and 
discredited commanders. Bouille had conspired 
against the States- General, Lafayette against the 
Legislative Assembly, and Dumouriez against the 
Convention. One year from that time it had 
a superb force, 732,000 strong, commanded by 



POLITICAL COURTS 179 

Jourdan and Pichegru, Hoche, Moreau, and Bo- 
naparte. Above all Carnot loved Hoche. Up to 
Valmy the old regular army, however shaken, 
had remained as a core. Then it became merged in 
a mass of volunteers, and these volunteers had 
to be armed and disciplined and fed and led 
against the greatest and strongest coalition which, 
the modern world had ever seen. France, linger 
Carnot, became a vast workshop. Its most 
eminent scientific men taught the people how to 
gather saltpetre and the government how to 
manufacture powder and artillery. Horses had 
to be obtained. Carnot was as reckless of himself 
as of others. He knew no rest. There was that 
to be done which had to be done quickly and at 
any cost; there was that or annihilation. 

On October 21, 1794, when the people had 
gathered in the Champ de Mars to celebrate the 
Festival of Victories, after the President of the 
Convention had proclaimed that the Republic 
had been delivered, Carnot announced what had 
been accomplished. 

France had won twenty-seven victories, of which 
eight had been pitched battles. 

One hundred and twenty lesser combats. 



l8o THE THEORY OF SOCIAL REVOLUTIONS 

France had killed eighty thousand enemies. 

Had taken ninety-one thousand prisoners. 

Also one hundred and sixteen places or towns, 
six after siege. 

Two hundred and thirty forts or redoubts. 

Three thousand eight hundred cannon. 

Seventy thousand muskets. 

Ninety flags. 

As Benjamin Constant has observed, nothing 
can change the stupendous fact "that the Conven- 
tion found the enemy at thirty leagues from Paris, 
. . . and made peace at thirty leagues from 
Vienna." 

Under the stimulus of a change in enviroment 
a new type of mind is apt to expand with something 
of this resistless energy. It did so in the Reforma- 
tion. It may be said almost invariably to do so, 
when decay does not supervene, and it now con- 
cerns us to consider, in some rough way, what the 
cost to the sinking class of attempting repression 
may be, when it miscalculates its power in such 
an emergency. 

I take it to be tolerably clear that, if the French 
privileged classes had accepted the reforms of 
Turgot in good faith, and thus had spread the 



POLITICAL COURTS l8l 

movement of the revolution over a generation, 
there would have been no civil war and no confisca- 
tions, save confiscations of ecclesiastical property. 
I take it also that there would have been no 
massacres and no revolutionary tribunals, if France 
in 1 793 had fought foreign enemies alone, as Eng- 
land did in 1688. Even as it was the courts did 
not grow thoroughly political until the preserva- 
tion of the new type of mind came to hinge largely 
on the extermination of the old. Danton's first 
and relatively benign revolutionary tribunal, es- 
tablished in March, 1793, was reorganized by the 
Committee of Public Safety in the following 
autumn, by a series of decrees of which the most 
celebrated is that of September 17, touching 
suspected persons. By these decrees the tribunal 
was enlarged so that, in the words of Danton, 
every day an aristocratic head might fall. The 
committee presented a list of judges, and the 
object of the law was to make the possession 
of a reactionary mind a capital offence. It is 
only in extreme exigencies that pure thinking by 
a single person becomes a crime. Ordinarily, a 
crime consists of a malicious thought coupled 
with an overt act, but in periods of high tension, 



l82 THE THEORY OF SOCIAL REVOLUTIONS 

the harboring of any given thought becomes 
criminal. Usually during civil wars test oaths are 
tendered to suspected persons to discover their 
loyalty. For several centuries the Church habit- 
ually burnt alive all those who denied the test 
dogma of transubstantiation, and during the 
worst spasm of the French Revolution to believe in 
the principle of monarchy and privilege was made 
capital with confiscation of property. 

The question which the Convention had to meet 
was how to establish the existence of a criminal 
mind, when nothing tangible indicated it. The 
old regime had tortured. To prove heresy the 
Church also had always used torture. The 
Revolution proceeded more mildly. It acted on 
suspicion. The process was simple. The Com- 
mittee, of whom in this department Robespierre 
was the chief, made lists of those who were to be 
condemned. There came to be finally almost a 
complete absence of forms. No evidence was 
necessarily heard. The accused, if inconvenient, 
was not allowed to speak. If there were doubt 
touching the probability of conviction, pressure 
was put upon the court. I give one or two ex- 
amples: Scellier, the senior associate judge of 



POLITICAL COURTS 183 

the tribunal, appears to have been a good lawyer 
and a fairly worthy man. One day in February, 
1794, Scellier was at dinner with Robespierre, 
when Robespierre complained of the delays of the 
court. Scellier replied that without the observ- 
ance of forms there could be no safety for the 
innocent. "Bah!" replied Robespierre, — "you 
and your forms : wait ; soon the Committee will 
obtain a law which will suppress forms, and then 
we shall see." Scellier ventured no answer. Such 
a law was drafted by Couthon and actually passed 
on 22 Prairial (June 10, 1794), and yet it altered 
little the methods of Fouquier-Tinville as prose- 
cuting officer. Scellier having complained of this 
law of Prairial to Saint- Just, Saint- Just replied 
that if he were to report his words, or that he was 
flinching, to the Committee, Scellier would be 
arrested. As arrest was tantamount to sentence 
of death, Scellier continued his work. 

Without reasoning the subject out logically 
from premise to conclusion, or being, of course, 
capable of doing so in the mass. Frenchmen had 
collectively received the intuition that everything 
must be endured for a strong government, and 
that whatever obstructed that government must 



l84 THE THEORY OF SOCIAL REVOLUTIONS 

be eliminated. For the process of elimination 
they used the courts. Under the conditions in 
which they were placed by the domestic enemy, 
they had little alternative. If a political party 
opposed the Dictatorship in the Convention, that 
party must be broken down; if a man seemed 
likely to become a rival for the Dictatorship, that 
man must be removed ; all who conspired against 
the Republic must be destroyed as ruthlessly at 
home as on the battle-field. The Republic was 
insolvent, and must have money, as it must have 
men. If the government needed men, it took 
them, — all. If it needed money, and a man were 
rich, it did not hesitate to execute him and con- 
fiscate his property. There are very famous ex- 
amples of all these phenomena strewn through 
the history of the Terror. 

The Girondists were liberals. They always 
had been liberals; they had never conspired 
against the Republic ; but they were impracticable. 
The ablest of them, Vergniaud, complained before 
the Tribunal, that he was being tried for what he 
thought, not for what he had done. This the 
government denied, but it was true. Nay, more ; 
he was tried not for positive but for negative 



POLITICAL COURTS 185 

opinions, and he was convicted and executed, and 
his friends were convicted and executed with him, 
because, had they remained in the Convention, 
the Dictatorship, through their opposition, would 
have lost its energy. Also the form of the con- 
viction was shocking in the extreme. The de- 
fence of these twenty-one men was, practically, 
suppressed, and the jury were directed to bring 
in a verdict of guilty. Still the prosecutions 
of the Girondists stopped here. When they re- 
frained from obstruction, they were spared. 

Danton and his friends may have been, and 
probably were, whether intentionally or by force 
of circumstances, a menace to the Dictatorship. 
Either Robespierre or Danton had to be eliminated. 
There was not room for both. On April i, 1793, 
Danton, Camille Desmoulins, and others were 
arrested on a warrant signed by such men as Cam- 
baceres, Carnot, and Prieur. Carnot in particular 
was a soldier of the highest character and genius. 
He would have signed no such warrant had he not 
thought the emergency pressing. Nor was the 
risk small. Danton was so popular and so strong 
before a jury that the government appears 
to have distrusted even Fouquier-Tinville, for 



l86 THE THEORY OF SOCIAL REVOLUTIONS 

an order was given, and held in suspense, ap- 
parently to Henriot, to arrest the President and 
the Public Prosecutor of the Revolutionary Tri- 
bunal, on the day of Danton's trial. 

Under such a stimulant Fouquier did his best, 
but he felt himself to be beaten. Examining 
Cambon, Danton broke out: "Do you believe 
us to be conspirators ? Look, he laughs, he don't 
believe it. Record that he has laughed." Fou- 
quier was at his wits' end. If the next day the 
jury were asked if they had heard enough, and 
they answered, "No," there would be an acquittal, 
and then Fouquier's own head would roll into the 
basket. Probably there might even be insurrec- 
tion. Fouquier wrote to the Committee that they 
must obtain from the Convention a decree silencing 
the defence. So grave was the crisis felt to be 
that the decree was unanimously voted. When 
Fouquier heard that the decree was on its way, he 
said, with a sigh of relief, — "Faith, we need it." 
But when it was read, Danton sprung to his feet, 
raging, declaring that the public cried out treason 
upon it. The President adjourned the court while 
the hall resounded with the protests of the de- 
fendants and the shouts of the police as they tore 



POLITICAL COURTS 187 

the condemned from the benches which they 
clutched and dragged them through the corridors 
toward the prison. They emerged no more until 
they mounted the carts which took them to the 
scaffold. 

Nor was it safe to hesitate if one were attached 
to this court. Fouquier had a clerk named Paris- 
Fabricius . Now Paris had been a friend of D anton 
and took his condemnation to heart. He even 
declined to sign the judgment, which it was his 
duty to do. The next day, when he presented 
himself to Fouquier, Fouquier looked at him 
sourly, and observed, "We don't want men who 
reason here; we want business done." The 
following morning Paris did not appear. His 
friends were disturbed, but he was not to be found. 
He had been cast into a secret dungeon in the 
prison of the Luxembourg. 

So, if a man were too rich it might go hard with 
him. Louis-Philippe- Joseph, Due d'Orleans, after- 
ward known as Egalite, was one of the most 
interesting figures among the old nobility. The 
great-great-great-grandson of Louis XIII, he was a 
distant cousin of Louis XVI, and ranked as the 
first noble of France beyond the royal family. 



l88 THE THEORY OF SOCIAL REVOLUTIONS 

His education had been unfortunate. His father 
lived with a ballet-dancer, while his mother, the 
Princess Henriette de Bourbon- Conti, scandalized 
a society which was not easily shocked. During 
the Terror the sans-culottes ever)rwhere averred 
that the Duke was the son of a coachman in the 
service of the banker Duruet. Doubtless this 
was false, but the princess had abundant liaisons 
not much more reputable. Left to himself at 
sixteen years old, Egalite led a life of extreme 
profligacy, but he married one of the most beauti- 
ful and charming women of the age, whom he 
succeeded in inspiring with a devoted affection. 
Born in 1747, his father died in 1785, leaving him, 
just at the outbreak of the Revolution, the master 
of enormous wealth, and the father of three sons 
who adored him. The eldest of these was the 
future king, Louis-Philippe. The man must 
have had good in him to have been loved as he was 
throughout life. He was besides more intelligent 
touching the Revolution and its meaning than 
any man approaching him in rank in France. The 
Duke, when a young man, served with credit in 
the navy, but after the battle of Ushant, in 1778, 
where he commanded the blue squadron, he was 



POLITICAL COURTS 189 

received with such enthusiasm in Paris, that 
Ma;rie-Antoinette obtained his dismissal from the 
service. From this period he withdrew from 
court and his opposition to the government be- 
gan. He adopted republican ideas, which he drew 
from America, and he educated his children as 
democrats. In 1789 he was elected to the States- 
General, where he supported the fusion of the 
orders, and attained to a popularity which, on 
one occasion, according to Madame de Campan, 
nearly made the Queen faint from rage and grief. 
It was from the garden of his palace of the Palais 
Royal that the column marched on July 14, 
wearing his colors, the red, white and blue, to 
storm the Bastille. It seemed that he had only 
to go on resolutely to thrust the King aside and 
become the ruler of France. He made no effort 
to do so. Mirabeau is said to have been disgusted 
with his lack of ambition. He was charitable 
also, and spent very large sums of money among 
the poor of Paris during the years of distress 
which followed upon the social disorders. The 
breach with the court, however, became steadily 
wider, and finally he adhered to the party of 
Danton and voted for the condemnation of the 



igo THE THEORY OF SOCIAL REVOLUTIONS 

King. He sent two of his sons to serve in the 
army. The elder was still with Dumouriez at 
the time of his treason. On April 6, 1793, when 
Dumouriez's treachery had become known, the 
Assembly ordered the arrest of the whole Bourbon 
family, and among them the Duke was appre- 
hended and sent to Marseilles. 

Thus it appears that whatever complaint his 
own order may have had against Egalite, the 
Republic certainly had none. No man could have 
done more for modern France than he. He aban- 
doned his class, renounced his name, gave his 
money, sent his sons to the war, and voted for 
his own relative's death. No one feared him, 
and yet Robespierre had him brought to Paris 
and guillotined. His trial was a form. Fouquier 
admitted that he had been condemned before he 
left Marseilles. The Duke was, however, very 
rich and the government needed his money. 
Every one understood the situation. He was 
told of the order for his arrest one night when at 
supper in his palace in Paris with his friend 
Monsieur de Monville. The Duke, much moved, 
asked Monville if it were not horrible, after all 
the sacrifices he had made and all that he had done. 



POLITICAL COURTS 191 

"Yes, horrible," said Monville, coolly, "but what 
would you have? They have taken from your 
Highness all they could get, you can be of no fur- 
ther use to them. Therefore, they will do to you, 
what I do with this lemon " (he was squeezing 
a lemon on a sole) ; "now I have all the juice." 
And he threw the lemon into the fireplace. But 
yet even then Robespierre was not satisfied. He 
harbored malice against this fallen man. On the 
way to the scaffold he ordered the cart, in which 
the Duke sat, to stop before the Palais Royal, which 
had been confiscated, in order that the Duke 
might contemplate his last sacrifice for his country. 
The Duke showed neither fear nor emotion. 

All the world knows the story of the Terror. 
The long processions of carts carrying victims to 
the guillotine, these increasing in number until after 
the Law of Prairial they averaged sixty or seventy 
a day in Paris alone, while in the provinces there 
was no end. At Nantes, Carrier could not work 
fast enough by a court, so he sank boat loads of 
prisoners in the Loire. The hecatombs sacrificed 
at Lyons, and the "Red Masses" of Orange, have 
all been described. The population of Toulon 
sank from 29,000 to 7,000. All those, in fine. 



192 THE THEORY OF SOCIAL REVOLUTIONS 

were seized and slain who were suspected of hav- 
ing a mind tinged with caste, or of being traitors 
to the RepubHc. And it was the Centre, or the 
majority of the Convention, who did this, by 
tacitly permitting it to be done. That is to say, 
France permitted it because the onslaught of the 
decaying class made atrocities such as these 
appear to be a condition of self-preservation. I 
doubt if, in human history, there be such another 
and so awful an illustration of the possible effects 
of conservative errors of judgment. 

For France never loved the Terror or the loath- 
some instruments, such as Fouquier-Tinville, or 
Carrier, or Billaud-Varennes, or CoUot-d'Herbois, 
, or Henriot, or Robespierre, or Couthon, who 
conducted it. On this point there can, I think, 
be neither doubt nor question. I have tried to 
show how the Terror began. It is easy to show 
how and why it ended. As it began automatically 
by the stress of foreign and domestic war, so it 
ended automatically when that stress was re- 
lieved. And the most curious aspect of the 
phenomenon is that it did not end through the 
application of force, but by common consent, 
and when it had ended, those who had been used 



POLITICAL COURTS 193 

for the bloody work could not be endured, and 
they too were put to death. The procession of 
dates is convincing. 

When, on July 27, 1793, Robespierre entered 
the Committee of Public Safety, the fortunes of 
the Republic were near their nadir, but almost im- 
mediately, after Carnot took the War Department 
on August 14, they began to mend. On October 8, 
1793, Lyons surrendered; on December 19, 1793, 
the English evacuated Toulon; and, on De- 
cember 23, the insurrection in La Vendee receiyed 
its death blow at Savenai. There had also 
been success on the frontiers. Carnot put Hoche 
in command in the Vosges. On December 23, 
1793, Hoche defeated Wurmser at Freschweiller, 
when the Austrians, abandoning the lines of Wis- 
sembourg, fell back across the Rhine. Thus by 
the end of 1793, save for the great border fortresses 
of Valenciennes and Conde to the north, which 
commanded the road from Brussels to . Paris, 
the soil of France had been cleared of the enemy, 
and something resembling domestic tranquillity 
had been restored at home. Simultaneously, 
as the pressure lessened, rifts began to appear in 
the knot of men who held the Dictatorship in 



194 THE THEORY OF SOCIAL REVOLUTIONS 

the Republic. Robespierre, Couthon, and Saint- 
Just coalesced, and gained control of the police, 
while Billaud-Varennes, CoUot-d'Herbois, and, 
secretly and as far as he dared, Barere, formed an 
opposition. Not that the latter were more moder- 
ate or merciful than Robespierre, but because, 
in the nature of things, there could be but one 
Dictator, and it became a question of the survival 
of the fittest. Carnot took little or no part in 
active politics. He devoted himself to the war, 
but he disapproved of the Terror and came to 
a breach with Saint- Just. Robespierre's power 
culminated on June lo, 1794, with the passage 
of the Law of 22 Prairial, which put the life of 
every Frenchman in his hand, and after which, 
save for some dozen or two of his most intimate 
and devoted adherents like Saint- Just, Couthon, 
Le Bas, Fouquier, Fleuriot the Mayor of Paris, 
and Henriot, the commander of the national 
guard, no one felt his head safe on his shoulders. 
It needed but security on the northern frontier 
to cause the social centre of gravity to shift and 
Robespierre to fall, and security came with the 
campaign of Fleurus. 
Jourdan and Pichegru were in command on 



POLITICAL COURTS 195 

the Belgian border, and on June 26, 1794, just 
sixteen days after the passage of the Law of 
Prairial, Jourdan won the battle of Fleurus. 
This battle, though not decisive in itself, led to 
decisive results. It uncovered Valenciennes and 
Conde, which were invested, closing the entrance 
to France. On July 11, Jourdan entered Brus- 
sels; on July 16, he won a crushing victory 
before Louvain and the same day Namur opened 
its gates. On July 2;^, Pichegru, driving the Eng- 
lish before him, seized Antwerp. No Frenchman 
could longer doubt that France was delivered, and 
with that certainty the Terror ended without a 
blow. Eventually the end must have come, but it 
came instantly, and, according to the old legend, 
it came through a man's love for a woman. ^ 

John Lambert Tallien, the son of the butler 
of the Marquis of Bercy, was born in 1769, and 
received an education through the generosity 
of the marquis, who noticed his intelligence. He 
became a journeyman printer, and one day in the 
studio of Madame Lebrun, dressed in his work- 
man's blouse, he met Therezia Cabarrus, Marquise 
de Fontenay, the most seductive woman of her 
time, and fell in love with her on the instant. 



196 THE THEORY OF SOCIAL REVOLUTIONS 

Nothing, apparently, could have been more hope- 
less or absurd. But the Revolution came. Tallien 
became prominent, was elected to the Convention, 
grew to be influential, and in September, 1793, was 
sent to Bordeaux, as representative of the Cham- 
ber, or as proconsul, as they called it. There he, 
the all-powerful despot, found Therezia, trying to 
escape to Spain, in prison, humble, poor, shudder- 
ing in the shadow of the guillotine. He saved 
her ; he carried her through Bordeaux in triumph 
in a car by his side. He took her with him to 
Paris, and there Robespierre threw her into prison, 
and accused Tallien of corruption. On June 12 
Robespierre denounced him to the Convention, 
and on June 14, 1794, the Jacobins struck his 
name from the list of the club. When Fleurus 
was fought Therezia lay in La Force, daily ex- 
pecting death, while Tallien had become the soul 
of the reactionary party. On the 8 Thermidor 
(July 26, 1794) Tallien received a dagger wrapped 
in a note signed by Therezia, — "To-morrow they 
kill me. Are you then only a coward ?" ^ 

On the morrow the great day ]jad come. Saint- 
Just rose in the Convention to read a report to 

^ " C'est demain qu'on me tue; n'etes-vous done qu'un lache?" 



POLITICAL COURTS I97 

denounce Billaud, CoUot, and Carnot. Tallien 
would not let him be heard. Billaud followed him. 
CoUot was in the chair. Robespierre mounted 
the tribune and tried to speak. It was not without 
reason that Therezia afterwards said, "This little 
hand had somewhat to do with overthrowing the '' 
guillotine," for Tallien sprang on him, dagger in 
hand, and, grasping him by the throat, cast him 
from the tribune, exclaiming, "I have armed 
myself with a dagger to pierce his heart if the Con- 
vention dare not order his accusation." Then 
rose a great shout from the Centre, "Down with 
the tyrant, arrest him, accuse him !" From the 
Centre, which until that day had always silently 
supported the Robespierrian Dictatorship. Robes- 
pierre for the last time tried to speak, but his 
voice failed him. "It's Danton's blood that 
chokes him; arrest him, arrest him !" they shouted 
from the Right. Robespierre dropped exhausted 
on a bench, then they seized him, and his brother, 
and Couthon, and Saint- Just, and ordered that 
the police should take them to prison. 

But it was one thing for the Convention to 
seize Robespierre singly, and within its own hall ; 
it was quite another for it to hold him and 



198 THE THEORY OF SOCIAL REVOLUTIONS 

send him to the guillotine. The whole physical 
force of Paris was nominally with Robespierre. 
The Mayor, Fleuriot, closed the barriers, sounded 
the tocsin, and forbade any jailer to receive 
the prisoners; while Henriot, who had already 
been drinking, mounted a horse and galloped 
forth to rouse the city. Fleuriot caused Robes- 
pierre, Couthon, and Le Bas to be brought 
to the City Hall. A provisional government was 
completed. It only remained to disperse the 
Assembly. Henriot undertook a duty which 
looked easy. He seems to have collected about 
twenty guns, which he brought to the Tuileries 
and trained on the hall of the Convention. The 
deputies thought all was over. Collot-d'Herbois 
took the chair, which was directly in range, put 
on his hat, and calmly said, as Henriot gave the 
order to fire, "We can at least die at our post." 
No volley came — the men had mutinied. Then 
the Convention declared Henriot beyond the pro- 
tection of the law, and Henriot fled to the City 
Hall. The Convention chose Barras to command 
their armed force, but save a few police they had 
no force. The night was wearing away and 
Fleuriot had not been able to persuade Robes- 



POLITICAL COURTS I99 

pierre to take any decisive step. Robespierre was, 
indeed, only a pettifogging attorney. At length 
he consented to sign an appeal to arms. He had 
written two letters of his name — "Ro" — when 
a section of police under B arras reached the City 
Hall. They were but a handful, but the door 
was unguarded. They mounted the stairs and as 
Robespierre finished the "o", one of these men, 
named Merda, fired on him, breaking his jaw. 
The stain of blood is still on the paper where 
Robespierre's head fell. They shot Couthon in 
the leg, they threw Henriot out of the window into 
a cesspool below where he wallowed all night, while 
Le Bas blew out his brains. The next day they 
brought Robespierre to the Convention, but the 
Convention refused to receive him. They threw 
him on a table, where he lay, horrible to be seen, 
his coat torn down the back, his stockings falling 
over his heels, his shirt open and soaking with 
blood, speechless, for his mouth was filled with 
splinters of his broken jaw. Such was the man 
who the morning before had been Dictator, and 
master of all the armies of France. Couthon 
was in little better plight. Twenty-one in all 
were condemned on the 10 Thermidor and taken 



200 THE THEORY OF SOCIAL REVOLUTIONS 

in carts to the guillotine. An awful spectacle. 
There was Robespierre with his disfigured face, 
half dead, and Fleuriot, and Saint- Just, and 
Henriot next to Robespierre, his forehead gashed, 
his right eye hanging down his cheek, dripping 
with blood, and drenched with the filth of the sewer 
in which he had passed the night. Under their 
feet lay the cripple Couthon, who had been 
thrown in like a sack. Couthon was paralyzed, 
and he howled in agony as they wrenched him 
straight to fasten him to the guillotine. It took 
a quarter of an hour to finish with him, while the 
crowd exulted. A hundred thousand people saw 
the procession and not a voice or a hand was raised 
in protest. The whole world agreed that the 
Terror should end. But the Oldest of those who 
suffered on the lo Thermidor was Couthon, who 
was thirty-eight, Robespierre was thirty-five, 
and Saint- Just but twenty-seven. 

Sa closed the Terror with the strain which 
produced it. It will remain a by-word for all 
.time, and yet, appalling as it may have been, 
it was the legitimate and the logical result of the 
opposition made by caste to the advent of equality 
before the law. Also, the political courts served 



POLITICAL COURTS 201 

their purpose. They killed out the archaic mind 
.in France, a mind too rigid to adapt itseK to a 
changing environment. Thereafter no organized 
opposition could ever be maintained against 
the new social equilibrium. Modern France went 
on steadily to a readjustment, on the basis of 
unification, simplification of administration, and 
equality before the law, first under the Directory, 
then under the Consulate, and finally under the 
Empire. With the Empire the Civil Code was 
completed, which I take to be the greatest effort 
at codification of modern times. Certainly it 
has endured until now. Governments have 
changed. The Empire has yielded to the Mon- 
archy, the Monarchy to the Republic, the Republic 
to the Empire again, and that once more to the 
Republic, but the Code which embodies the 
principle of equality before the law has remained. 
Fundamentally the social equilibrium has been 
stable. And a chief reason of this stability has 
been the organization of the courts upon rational 
and conservative principles. During the Terror 
France had her fiU of political tribunals. Since 
the Terror French judges, under every govern- 
ment, have shunned politics and have devoted 



202 THE THEORY OF SOCIAL REVOLUTIONS 

themselves to construing impartially the Code. 
Therefore all parties, and all ranks, and all condi- 
tions of men have sustained the courts. In 
France, as in England, there is no class jealousy 
touching the control of the judiciary. 



CHAPTER VI 

INTERENCES 

As the universe, which at once creates and de- 
stroys life, is a complex of infinitely varying forces, 
history can never repeat itself. It is vain, there- 
fore, to look in the future for some paraphrase of 
the past. Yet if society be, as I assume it to be, 
an organism operating on mechanical principles, 
we may perhaps, by pondering upon history, 
learn enough of those principles to enable us to 
view, more intelligently than we otherwise should, 
the social phenoniena about us. What we call 
civilization is, I suspect, only, in proportion to 
its perfection, a more or less thorough social 
centralization, while centralization, very clearly, is 
an effect of applied science. Civilization is ac- 
cordingly nearly synonymous with centralization, 
and is caused by mechanical discoveries, which are 
applications of scientific knowledge, like the dis- 
covery of how to kindle fire, how to build and 

sail ships, how to smelt metals, how to prepare 

203 



204 THE THEORY OF SOCIAL REVOLUTIONS 

explosives, how to make paper and print books, 
and the like. And we perceive on a little con- 
sideration that from the first great and funda- 
mental discovery of how to kindle fire, every 
advance in applied science has accelerated social 
movement, until the discovery of steam and 
electricity in the eighteenth and nineteenth 
centuries quickened movement as movement 
had never been quickened before. And this quick- 
ening has caused the rise of those vast cities, which 
are at once our pride and our terror. 

Social consolidation is, however, not a simple 
problem, for social consolidation implies an 
equivalent capacity for administration. I take 
it to be an axiom, that perfection in administra- 
tion must be commensurate to the bulk and momen- 
tum of the mass to be administered, otherwise the 
centrifugal will overcome the centripetal force, 
and the mass will disintegrate. In other words, 
civilization would dissolve. It is in dealing with 
administration, as I apprehend, that civilizations 
have usually, though not always, broken down, 
for it has been on administrative difficulties 
that revolutions have for the most part super- 
vened. Advances in administration seem to pre- 



INFERENCES 205 

suppose the evolution of new governing classes, 
since, apparently, no established t)^e of mind can 
adapt itself to changes in environment, even in 
slow-moving civilizations, as fast as environments 
change. , Thus a moment arrives when the minds 
of any given dominant type fail to meet the 
demands made upon them, and are superseded 
by a younger type, which in turn is set aside 
by another still younger, until the limit of the 
administrative genius of that particular race 
has been reached. Then disintegration sets in, 
the social momentum is gradually relaxed, and 
society sinks back to a level at which it can 
cohere. To us, however, the most distressing 1/ 
aspect of the situation is, that the social accelera- ^ 
tion is progressive in proportion to the activity of 
the scientific mind which makes mechanical dis- 
coveries, and it is, therefore, a triumphant science 
which produces those ever more rapidly recurring 
changes in environment to which men must adapt 
themselves at their peril. As, under the stimulant 
of modern science, the old types fail to sustain 
themselves, new t3^es have to be equally rapidly 
evolved, and the rise of a new governing class ^ 
is always synonymous with a social revolution - 



2o6 THE THEORY OF SOCIAL REVOLUTIONS 

and a redistribution of property. The Industrial 
Revolution began almost precisely a century and 
a half ago, since when the scientific mind has 
continually gained in power, and, during that 
period, on an average of once in two generations, 
the environment has so far shifted that a social 
revolution has occurred, accompanied by the 
advent of a new favored class, and a readjustment 
of wealth. I think that a glance at American 
history will show this estimate to be within the 
truth. At the same time such rapidity of intellec- 
tual mutation is without precedent, and I should 
suppose that the mental exhaustion incident 
thereto must be very considerable. 

In America, in 1770, a well-defined aristocracy 
held control. As an effect of the Industrial 
Revolution upon industry and commerce, the 
Revolutionary War occurred, the colonial aris- 
tocracy misjudged the environment, adhered to 
Great Britain, were exiled, lost their property, 
and perished. Immediately after the American 
Revolution and also as a part of the Industrial 
Revolution, the cotton gin was invented, and the 
cotton gin created in the South another aristoc- 
racy, the cotton planters, who flourished until 



INFERENCES 207 

i860. At this point the changing of the environ- 
ment, caused largely by the railway, brought a 
pressure upon the slave-owners against which 
they, also failing to comprehend their situation, 
rebelled. They were conquered, suffered confisca- 
tion of their property, and perished. Furthermore, 
the rebellion of the aristocracy at the South was 
caused, or at all events was accompanied by, the 
rise of a new dominant class at the North, whose 
power rested upon the development of steam in 
transportation and industry. This is the class 
which has won high fortune by the acceleration of 
the social movement, and the consequent urban 
growth of the nineteenth century, and which has 
now for about two generations dominated in the 
land. If this class, like its predecessors, has in 
its turn mistaken its environment, a redistribu- 
tion of property must occur, distressing, as 
previous redistributions have been, in proportion 
to the inflexibility of the sufferers. The last two 
redistributions have been painful, and, if we 
examine passing phenomena from this standpoint, 
they hardly appear to promise much that is re- 
assuring for the future. 
/Administration is the capacity of coordinating f 



2o8 THE THEORY OF SOCIAL REVOLUTIONS 

many, and often conflicting, social energies in a 
single organism, so adroitly that they shall 
operate as a unity. This presupposes the power 
of recognizing a series of relations between numer- 
ous special social interests, with all of which no 
single man can be intimately acquainted. / Prob- 
ably no very highly specialized class can be strong^ 
in this intellectual quality because of the intel- 
lectual isolation incident to specialization'; and 
yet administration or generalization is not only 
the faculty upon which social stability rests, but 
is, possibly, the highest faculty of the human 
mind. It is precisely in this preeminent requisite 
for success in government that I suspect the 
modern capitalistic class to be weak. The scope 
of the human intellect is necessarily limited, and 
modern capitalists appear to have been evolved 
under the stress of an environment which de- 
manded excessive specialization in the direction 
of a genius adapted to money-making under 
highly complex industrial conditions. To this 
money-making attribute all else has been sacri- 
ficed, and the modern capitalist not only thinks 
in terms of money, but he thinks in terms of 
money more exclusively than the French aristo- 



INFERENCES 209 

crat or lawyer ever thought in terms of caste. 
The modern capitahst looks upon life as a financial 
combat of a very specialized kind, regulated by a 
code which he understands and has indeed him- 
self concocted, but which is recognized by no one 
else in the world. He conceives sovereign powers 
to be for sale. He may, he thinks, buy them; 
and if he buys them ; he may use them as he 
pleases. He believes, for instance, that it is the 
lawful, nay more ! in America, that it is the 
constitutional right of the citizen to buy the 
national highways, and, having bought them, to 
use them as a common carrier might use a horse 
and cart upon a public road. He may sell his 
service to whom he pleases at what price may 
suit him, and if by doing so he ruins men and 
cities, it is nothing to him. He is not respon- 
sible, for he is not a trustee for the public. If he 
be restrained by legislation, that legislation is in 
his eye an oppression and an outrage, to be 
annulled or eluded by any means which will not 
lead to the penitentiary. He knows nothing and 
cares less, for the relation which highways always 
have held, and always must hold, to every civilized 
population, and if he be asked to inform himself 



2IO THE THEORY OF SOCIAL REVOLUTIONS 

on such subjects he resents the suggestion as an 
insult. He is too specialized to comprehend a 
social relation, even a fundamental one like this, 
beyond the narrow circle of his private interests. 
He might, had he so chosen, have evolved a sys- 
tem of governmental railway regulation, and have 
administered the system personally, or by his 
own agents, but he could never be brought to 
see the advantage to himself of rational conces- 
sion to obtain a resultant of forces. He resisted 
all restraint, especially national restraint, believ- 
ing that his one weapon — money — would be 
more effective in obtaining what he wanted in 
state legislatures than in Congress. Thus, of 
necessity, he precipitates a conflict, instead of 
establishing an adjustment. He is, therefore, in 
essence, a revolutionist without being aware of it.. 
The same specialized thinking appears in his 
reasoning touching actual government. New 
York City will serve as an illustration. 

New York has for two generations been noted 
for a civic corruption which has been, theoretically, 
abominable to all good citizens, and which the 
capitalistic class has denounced as abominable to 
itself. I suspect this to be an imaginative con- 



INFERENCES 211 

ception of the situation. Tammany Hall is, I 
take it, the administrative bureau through which 
capital purchases its privileges. An incorruptible 
government would offend capital, because, under 
such a government, capital would have to obey 
the law, and privilege would cease. Occasionally, 
Tammany grows rapacious and exacts too much 
for its services. Then a reform movement is 
undertaken, and finally a new management is 
imposed on Tammany ; but when Tammany has 
consented to a satisfactory scale of prices, the 
reform ends. To change the system would imply 
a shift in the seat of power. In fine, money is 
the weapon of the capitalist as the sword was the 
weapon of the mediaeval soldier; only, as the 
capitalist is more highly specialized than the sol- 
dier ever was, he is more helpless when his single 
weapon fails him. From the days of William the 
Conqueror to our own, the great soldier has been, 
very commonly, a famous statesman also, but I 
do not now remember, in English or American 
history, a single capitalist who has earned emi- 
nence for comprehensive statesmanship. On the 
contrary, although many have participated in 
public affairs, have held high office, and have 



212 THE THEORY OF SOCIAL REVOLUTIONS 

shown ability therein, capitalists have not un- 
usually, however unjustly, been suspected of 
having ulterior objects in view, unconnected with 
the public welfare, such as tariffs or land grants. 
Certainly, so far as I am aware, no capitalist has 
ever acquired such influence over his contem- 
poraries as has been attained with apparent ease 
by men like Cromwell, Washington, or even 
Jackson. 

And this leads, advancing in an orderly manner 
step by step, to what is, perhaps, to me, the 
most curious and interesting of all modern intel- 
lectual phenomena connected with the specialized 
mind, — the attitude of the capitalist toward the 
law. Naturally the capitalist, of all men, might 
be supposed to be he who would respect and up- 
hold the law most, considering that he is at once 
the wealthiest and most vulnerable of human 
beings, when called upon to defend himself by 
physical force. How defenceless and how in- 
competent he is in such exigencies, he proved to 
the world some years ago when he plunged him- 
self and the country into the great Pennsylvania 
coal strike, with absolutely no preparation. 
Nevertheless, in spite of his vulnerability, he is 



INFERENCES 213 

of all citizens the most lawless.^ He appears to, 
assume that the law will always be enforced, 
when he has need of it, by some special personnel 
whose duty lies that way, while he may evade the 
law, when convenient, or bring it into contempt, 
with impunity. The capitalist seems incapable 
of feeling his responsibility, as a member of the 
governing class, in this respect, and that he is 
bound to uphold the law, no matter what the 
law may be, in order that others may do the like. 
If the capitalist has bought some sovereign func- 
tion, and wishes to abuse it for his own behoof, he 
regards the law which restrains him as a despotic 
invasion of his constitutional rights, because, 
with his specialized mind, he cannot grasp the 
relation of a sovereign function to the nation as a 
whole. He, therefore, looks upon the evasion of 
a law devised for public protection, but inimical 
to him, as innocent or even meritorious. 

If an election be lost, and the legislature, which 
has been chosen by the majority, cannot be 

^/In these observations on the intellectual tendencies of capital 
I speak generally. Not only individual capitalists, but great corpo- 
rations, exist, who are noble examples of law-abiding and intelligent 
citizenship. Their rarity, however, and their conspicuousness, seem 
to prove the general rule. 



214 THE THEORY OF SOCIAL REVOLUTIONS 

pacified by money, but passes some act which 
promises to be annoying, the first instinct of the 
capitalist is to retain counsel, not to advise him 
touching his duty under the law, but to devise a 
method by which he may elude it, or, if he can- 
not elude it, by which he may have it annulled as 
unconstitutional by the courts. The lawyer who 
succeeds in this branch of practice is certain to 
win the highest prizes at the bar. And as capital 
has had now, for more than one or even two 
generations, all the prizes of the law within its 
gift, this attitude of capital has had a profound 
effect upon shaping the American legal mind. 
The capitalist, as I infer, regards the constitu- 
tional form of government which exists in the 
United States, as a convenient method of obtain- 
ing his own way against a majority, but the lawyer 
has learned to worship it as a fetich. Nor is this 
astonishing, for, were written constitutions sup- 
pressed, he would lose most of his importance and 
much of his income. Quite honestly, therefore, 
the American lawyer has come to believe that a 
sheet of paper soiled with printers' ink and inter- 
preted by half-a-dozen elderly gentlemen snugly 
dozing in armchairs, has some inherent and 



INFERENCES 21$ 

marvellous virtue by which it can arrest the 
march of omnipotent Nature. And capital gladly 
accepts this view of American civilization, since 
hitherto capitalists have usually been able to 
select the magistrates who decide their causes, 
perhaps directly through the intervention of some 
president or governor whom they have had nom- 
inated by a convention controlled by their money, 
or else, if the judiciary has been elective, they have 
caused sympathetic judges to be chosen by means 
of a mechanism like Tammany, which they have 
frankly bought. 

I wish to make myself clearly understood. 
Neither capitalists nor lawyers are necessarily, or 
even probably, other than conscientious men. 
What they do is to think with specialized minds. 
All dominant t5^es have been more or less special-* 
ized, if none so much as this, and this specializa-^ 
tion has caused, as I imderstand it, that obtuseness 
of perception which has been their ruin when the 
environment which favored them has changed. 
All that is remarkable about the modern capitalist 
is the excess of his excentricity, or his deviation 
from that resultant of forces to which he must con- 
form. To us, however, at present, neither the 



2l6 THE THEORY OF SOCIAL REVOLUTIONS 

morality nor the present mental excentricity of 
the capitalist is so material as the possibility of 
his acquiring flexibility under pressure, for it 
would seem to be almost mathematically demon- 
strable that he will, in the near future, be sub- 
jected to a pressure under which he must develop 
flexibility or be eliminated. 

/ There can be no doubt that the modern environ- 
ment is changing faster than any environment 
ever pireviously changed; therefore, the social 
centre of gravity constari^Jy tends to shift more 
rapidly; and therefore, tnodern civilization has 
unprecedented need of the administrative or 
generalizing mind. But, as the mass and mo- 
mentum of modern society is prodigious, it will 
require a correspondingly prodigious energy to 
carry it safely from an unstable to a stable equi- 
/ librium. The essential is to generate the energy 
which brings success; and the more the mind 
dwells upon the peculiarities of the modern capi- 
talistic class, the more doubts obtrude themselves 
touching their ability to make the effort, even 
at present, and still more so to make it in the 
future as the magnitude of the social organism 
grows. 



INFERENCES 217 

One source of capitalistic weakness comes from 
a lack of proper instruments wherewith to work, 
even supposing the will of capital to be good ; and 
this lack of administrative ability is somewhat 
due to the capitalistic attitude toward education. 
In the United States capital has long owned the 
leading universities by right of purchase, as it 
has owned the highways, the currency, and the 
press, and capital has used the universities, in a 
general way, to develop capitalistic ideas. This, 
however, is of no great moment. What is of 
moment is that capital has commercialized edu- 
cation. Apparently modern society, if it is to 
cohere, must have a high order of generalizing 
mind, — a mind which can grasp a multitude of 
complex relations, — but this is a mind which can, 
at best, only be produced in small quantity and at 
high cost. Capital has preferred the specialized 
mind and that not of the highest quality, since 
it has found it profitable to set quantity before 
quality to the limit which the market wUl endure. 
Capitalists have never insisted upon raising an 
educational standard save in science and me- 
chanics, and the relative overstimulation of the 
scientific mind has now become an actual menace 



2l8 THE THEORY OF SOCIAL REVOLUTIONS 

to order because of the inferiority of the adminis- 
trative intelligence. 

Yet, even supposing the synthetic mind of the 
highest power to be increasing in proportion to 
the population, instead of, as I suspect, pretty 
rapidly decreasing, and supposing the capitalist 
to be fully alive to the need of administrative im- 
provements, a phalanx of Washingtons would 
be impotent to raise the administrative level of 
the United States materially, as long as the courts 
remain censors of legislation ; because the prov- 
ince of the censorial court is to dislocate any 
comprehensive body of legislation, whose effect 
would be to change the social status. That was 
the fundamental purpose which underlay the 
adoption of a written constitution whose object 
was to keep local sovereignties intact, especially 
at the South. Jefferson insisted that each sov- 
ereignty should by means of nullification protect 
itself. It was a long step in advance when the 
nation conquered the prerogative of asserting its 
own sovereign power through the Supreme Court. 
Now the intervention of the courts in legislation 
has become, by the change in environment, as 
fatal to administration as would have been, in 



INFERENCES 219 

1800, the success of nullification. I find it difii- 
cult to believe that capital, with its speciaHzed 
views of what constitutes its advantages, its 
duties, and its responsibilities, and stimulated by 
a bar moulded to meet its prejudices and require- 
ments, will ever voluntarily assent to the con- 
solidation of the United States to the point at 
which the interference of the courts with legis- 
lation might be eliminated; because, as I have 
pointed out, capital finds the judicial veto useful 
as a means of at least temporarily evading the law, 
while the bar, taken as a whole, quite honestly 
believes that the universe will obey the judicial 
decree. No delusion could be profounder and 
none, perhaps, more dangerous. Courts, I need 
hardly say, cannot control nature, though by trying 
to do so they may, like the Parliament of Paris, 
create a friction which shall induce an appalling 
catastrophe. 

True judicial courts, whether in times of peace 
or of revolution, seldom fail to be a substantial 
protection to the weak, because they enforce an 
established corpus juris and conduct trials by 
recognized forms. It is startling to compare the 
percentage of convictions to prosecutions, for the 



220 THE THEORY OF SOCIAL REVOLUTIONS 

same class of offences, in the regular criminal 
courts during the French Revolution, with the 
percentage in the Revolutionary Tribunal. And 
once a stable social equilibrium is reached, all 
men tend to support judicial courts, if judicial 
courts exist, from an instinct of self-preservation. 
This has been amply shown by French experi- 
ence, and it is here that French history is so 
illuminating to the American mind. Before the 
Revolution France had semi-political courts which 
conduced to the overthrow of Turgot, and, there- 
fore, wrought for violence; but more than this, 
France, under the old regime, had evolved a legal 
profession of a cast of mind incompatible with an 
equal administration of the law. The French 
courts were, therefore, when trouble came, sup- 
ported only by a faction, and were cast aside. 
With that the old regime fell. 

The young Duke of Chartres, the son of Egalite 
Orleans, and the future Louis Philippe, has re- 
lated in his journal an anecdote which illustrates, 
that subtle poison of distrust which undermines 
all legal authority, the moment that suspicion of 
political partiality in the judiciary enters the 
popular mind. In June, 1791, the Duke went 



INFERENCES 221 

down from Paris to Vendome to join the regiment 
of dragoons of which he had been commissioned 
colonel. One day, soon after he joined, a messen- 
ger came to him in haste to tell him that a mob 
had gathered near by who were about to hang 
two priests. "I ran thither at once," wrote the 
Duke ; "I spoke to those who seemed most excited 
and impressed upon them how horrible it was to 
hang men without trial ; besides, to act as hang- 
men was to enter a trade which they all thought 
infamous; that they had judges, and that this 
was their affair. They answered that their judges 
were aristocrats, and that they did not punish 
the guilty." That is to say, although the priests 
were non-jurors, and, therefore, criminals in the 
eye of the law, the courts would not enforce the 
law because of political bias.^ " It is your fault, " 
I said to them, " since you elected them [the 
judges], but that is no reason why you should do 
justice yourselves." 

Danton explained in the Convention that it 
was because of the deep distrust of the judiciary 

^By the Law of November 27, 1790, priests refusing to swear 
allegiance to the " civil constitution " of the clergy were punished by 
loss of pay and of rights of citizenship if they continued their func- 
tions. By Law of August 26, 1792, by transportation to Cayenne. 



222 THE THEORY OF SOCIAL REVOLUTIONS 

in the public mind, which this anecdote shows, 
that the September massacres occurred, and it 
was because all republicans knew that the state 
and the army were full of traitors like Dumouriez, 
whom the ordinary courts would not punish, that 
Danton brought forward his bill to organize a 
true political tribunal to deal with them sum- 
marily. When Danton carried through this 
statute he supposed himself to be at the apex of 
power and popularity, and to be safe, if any man 
in France were safe. Very shortly he learned 
the error in his calculation. Billaud was a mem- 
ber of the Committee of Public Safety, while 
Danton had allowed himself to be dropped from 
membership. Danton had just been married, 
and to an aristocratic wife, and the turmoil of 
office had grown to be distasteful to him. On 
March 30, 1794, Billaud somewhat casually 
remarked, "We must kill Danton; " for in 
truth Danton, with conservative leanings, was 
becoming a grave danger to the extreme Jacobins. 
Had he lived a few months longer he would have 
been a Thermidorist. Billaud, therefore, only 
expressed the prevailing Jacobin opinion; so the 
Jacobins arrested Danton, Camille Desmoulins, 



INFERENCES 223 

and his other friends, and Danton at once antici- 
pated what would be his doom. As he entered 
his cell he said to his jailer: "I erected the 
Tribunal. I ask pardon of God and men." But 
even yet he did not grasp the full meaning of 
what he had done. At his trial he wished to 
introduce his evidence fully, protesting "that he 
should understand the Tribunal since he created 
it;" nevertheless, he did not understand the 
Tribunal, he still regarded it as more or less a 
court. Topino-Lebrun, the artist, did under- 
stand it. Topino sat on the jury which tried 
Danton, and observed that the heart of one of 
his colleagues seemed failing him. Topino took 
the waverer aside, and said : "This is not a trial, 
it is a measure. Two men are impossible; one 
must perish. Will you kill Robespierre ? — No. 
— Then by that admission you condemn Danton." 
Lebrun in these few words went to the root of the 
matter, and stated the identical principle which 
underlies our whole doctrine of the Police Power. 
A political court is not properly a court at all,! 
but an administrative board whose function is to 
work the will of the dominant faction for the 
time being. Thus a political court becomes the 



224 THE THEORY OF SOCIAL REVOLUTIONS 

most formidable of all engines for the destruction 
of its creators the instant the social equilibrium 
shifts. So Danton found, in the spring of 1794, 
when the equilibrium shifted; and so Robespierre, 
who slew Danton, found the next July, when the 
equilibrium shifted again. 

Danton died on the 5th April, 1794; about 
three months later Jourdan won the Fleurus cam- 
paign. Straightway Thermidor followed, and 
the Tribunal worked as well for the party of 
Thermidor as it had for the Jacobins. Carrier, 
who had wallowed in blood at Nantes, as the 
ideal Jacobin, walked behind the cart which 
carried Robespierre to the scaffold, shouting, 
"Down with the tyrant;" but that did not save 
him. In vain he protested to the Convention 
that, were he guilty, the whole Convention was 
guilty, "down to the President's bell." By a 
vote of 498 out of 500, Carrier was sent before 
the Tribunal which, even though reorganized, con- 
demned him. Therezia Cabarrus gaily presided at 
the closing of the Jacobin Club, Tallien moved 
over to the benches on the right, and therefore the 
court was ruthless to Fouquier. On the 11 
Thermidor, seventy members, officers, or parti- 



INFERENCES 225 

sans of the Commune of Paris, were sent to the 
guillotine in only two batches. On the next day 
twelve more followed, four of whom were jury- 
men. Fouquier's turn came later. It may also 
be worth while for Americans to observe that a 
political court is quite as effective against property "^ 
as against life. The Duke of Orleans is only the 
most celebrated example of a host of Frenchmen 
who perished, not because of revenge, fear, or 
jealousy, but because the party in power wanted 
their property. The famous Law touching Sus- 
pected Persons (loi des suspects) was passed on 
September 17, 1793. On October 10, 1793, that 
is three weeks afterward, Saint- Just moved that 
additional powers should be granted, by the Con- 
vention, to the Committee of Public Safety, de- 
fining, by way of justification for his motion, those 
who fell within the purview of this law. Among 
these, first of all, came " the rich," who by that 
fact alone were to be considered, prima facie, 
enemies to their coimtry. 

As I stated at the beginning of this chapter, 
history never can repeat itself; therefore, what- 
ever else may happen in the United States, 
we certainly shall have no Revolutionary Tri- 



226 THE THEORY OF SOCIAL REVOLUTIONS 

bunal like the French Tribunal of 1793, but 
the mechanical principle of the political court 
always remains the same; it is an adminis- 
trative board the control of which is useful, or 
may be even essential, to the success of a domi- 
nant faction, and the instinctive comprehension 
which the American people have of this truth is 
demonstrated by the determination with which 
they have, for many years, sought to impose the 
will of the majority upon the judiciary. Other 
means failing to meet their expectations, they 
have now hit on the recall, which is as revolu- 
tionary in essence as were the methods used 
during the Terror. Courts, from the Supreme 
Court downward, if purged by recall, or a process 
tantamount to recall, would, under proper stress, 
work as surely for a required purpose as did the 
tribunal supervised by Fouquier-Tinville. 
v^ These considerations rather lead me to infer 
I that the extreme complexity of the administra- 
tive problems presented by modern industrial 
civilization is beyond the compass of the capital- 
istic mind. If this be so, American society, as at 
present organized, with capitalists for the domi- 
nant class, can concentrate no further, and, as 



INFERENCES 227 

nothing in the universe is at rest, if it does not 
concentrate, it must, probably, begin to disin- 
tegrate. Indeed we may perceive incipient signs 
of disintegration all about us. We see, for ex- 
ample, an universal contempt for law, incarnated 
in the capitalistic class itself, which is responsible 
for order, and in spite of the awful danger which 
impends over every rich and physically helpless 
t3/pe should the coercive power collapse. We 
see it even more distinctly in the chronic war 
between capital and labor, which government is 
admittedly unable to control; we see it in 
the slough of urban politics, inseparable from 
capitalistic methods of maintaining its ascend- 
ancy; and, perhaps, most disquieting of all, we 
see it in the dissolution of the family which 
has, for untold ages, been the seat of discipline 
and the foundation of authority. For the dis- 
solution of the family is peculiarly a phenome- 
non of our industrial age, and it is caused 
by the demand of industry for the cheap labor 
of women and children. Napoleon told the law- 
yers who drafted the Code that he insisted on 
one thing alone. They must fortify the family, 
for, said he, if the family is responsible to the 



228 THE THEORY OF SOCIAL REVOLUTIONS 

father and the father to me, I can keep order in 
France. One of the difficuhies, therefore, which 
capital has to meet, by the aid of such adminis- 
trative abiHty as it can command, is how to keep 
order when society no longer rests on the cohesive 
family, but on highly volatilized individuals as 
incohesive as grains of sand. 

Meditating upon these matters, it is hard 
to resist the persuasion that unless capital 
can, in the immediate future, generate an 
intellectual energy, beyond the sphere of its 
specialized calling, very much in excess of 
any intellectual energy of which it has hitherto 
given promise, and unless it can besides rise to an 
appreciation of diverse social conditions, as well 
as to a level of political sagacity, far higher than 
it has attained within recent years, its relative 
power in the community must decline. If this 
be so the symptoms which indicate social disin- 
tegration will intensify. As they intensify, the 
ability of industrial capital to withstand the at- 
tacks made upon it will lessen, and this process 
must go on until capital abandons the contest to 
defend itself as too costly. Then nothing remains 
but flight. Under what conditions industrial 



INFERENCES 229 

capital would find migration from America possible, 
must remain for us beyond the bounds even of 
speculation. It might escape with little or no loss. 
On the other hand, it might fare as hardly as did 
the southern slaveholders. No man can foresee 
his fate. In the event of adverse fortune, how- 
ever, the position of capitalists would hardly 
be improved by the existence of political courts 
serving a malevolent majority. Whatever may 
be in store for us, here at least we reach an 
intelligible conclusion. Should Nature follow such 
a course as I have suggested, she will settle all 
our present perplexities as simply and as drasti- 
cally as she is apt to settle human perturba- 
tions, and she will follow logically in the 
infinitely extended line of her own most impres- 
sive precedents. 



INDEX 



Adams, John: appoints Marshall 
Chief Justice, 53-61 ; sent Ells- 
worth to France, 61 ; offered office 
to Jay; chose Marshall, 61. 

Adams, John Quincy: extract from 
diary of, 68. 

Administration: inefficiency of, in 
twentieth century, 3-4 ; relation to 
mass, 204; definition of, 207 etseq.; 
lack of ability in, 217; need for, in 
modem society, 217, 218. 

Alien and Sedition Acts: sg. 

American Revolution : a revolt 
against Monopoly, 25 ; begins with 
Boston Tea-party, 25. 

Arbitration: compulsory, 2g, 30; 
strong government needed for, 29, 
30. 

Aristocracy: See Ruling Class. 

Artois, Comte d': emigrates, 146; 
authorized to organize an army, 
148. 

Assignats: issued, 149; Cambon 
wishes to emit in Belgiiun, 174. 

Bastille: stormed, 145. 

Bench: See Judiciary, and Courts. 

Billaud-Varenne: an Instrument of 
the Terror, 191 ; quarrels with 
Robespierre, 194; leads Revolu- 
tion of Thermidor, 197; wants to 
kill Dan ton, 222. 

Bouilli: commands Army of the 
North, 146 ; executes soldiers, 147 ; 
tortures soldiers, 155. 

Bradley, Mr. Justice: opinion of, in 
Chicago, Milwaukee and St. Paul 
Railway vs. Minnesota, 102, 103; 
failed to sustain equality before 
the law, 115. 

Brass vs. North Dakota: 108. 



Brunswick, Duke of: manifesto of, 
155; threatens reprisals, 156; re- 
treat of, from Valmy, 164. 

Burke, Edmund: publishes Reflec- 
tions, and quarrels with Fox, 152; 
Cjiste incarnated in, 152. 

Cabarrus, Therezia, Marquise de Fon- 
tenay: meets TalUen, 195; ad- 
ventures of, 196 ; imprisoned in La 
Force, 196 ; sends Tallien a dagger, 
196 ; closes Jacobin Club, 224. 

Capitalistic Class: have assumed 
sovereign powers in America, 13 
etseq.; irresponsible, 14, 17; have 
levied taxes, 15 ; have regulated 
the currency, 17 e< seq.; have con- 
trolled prices, 25 et seq.; supported 
Washington, 28; now responsible 
for structure of American Society, 
29>et seq. ; have failed as politicians, 
31 et seq.; must accept conse- 
quences of failxu-e, 32 ei seq.; prob- 
ably incapable of appreciating 
failure, 33; prevail with Supreme 
Court in Income Tax Case, 74; 
deflected Supreme Court from its 
fundamental principle, 98 et seq.; 
antagonistic to equality before the 
law, 107; favored by Supreme 
Court, 108 et seq.; its pressure on 
Judiciary in favor of Monopoly, 
116-125; apparently breaking 
down, 207 ; too highly specialized, 
208; arbitrary, 209 et seq.; gov- 
erns by money, 210 etseq.; inferior 
as Statesmen and Soldiers, 211- 
212; attitude toward law, 212 et 
seq.; probably conscientious, 215; 
owns universities, 217; uses court 
to elude majority, 219; physically 



231 



232 



INDEX 



helpless, 227; likely to abandon 
America, 288-289; see English 
Landlords; see Ruling Class, 
French. 

Carnot: action of, at Dumouriez's 
treason, 17s; joins Committee of 
Public Safety, 178; becomes Min- 
ister of War, 178; annomices 
French victory, 179; signs war- 
rant to arrest Danton, 185 ; char- 
acter of, 185 , success of, as War 
Minister, 193; breach of, with 
Saint Just, 194; denounced by 
Saint Just, 197. 

Carrier: drowns prisoners at Nantes, 
191; trial of, executed, 224. 

Caste: nature of, 135 et seq.; French 
Judiciary, incarnation of, 136 ; law 
of, by Parhament of Paris, 142 ; 
defeated in National Assembly, 
14s ; Eiuropean Society divided by, 
147 et seq.; first duty of nobility 
to defend, 148; fused, throughout 
Europe, 152 ; law of, laid down at 
Pilnitz, 155; killed out by Revolu- 
tionary Tribunal, 200, 201. 

Centre: Party of, supported Party of 
Mountain, 177; supports Robes- 
pierre, 192 ; attacks Robespierre, 

197- 
Chalons: objective point of Valmy 

Campaign, 162. 
Charles I: execution of, 14. 
Charles X: See Comte d'Ariois. 
Chartres, Duke of: extract from 

diary of, 221. 
Chase: appointed Chief Justice, 54; 

decides Hepburn vs. Griswold, 72. 
Chase, Samuel: impeached, 67. 
Ckdteauvieux, Regiment of: pxmished 

after mutiny at Nancy, 146, 147; 

soldiers of, tortured, 155. 
Chicago, Milwaukee and St. Paul 

R. R. vs. Minnesota: 103 et seq. 
Chisholm vs. Georgia: 84. 
Church: landed ownership of, 149; 

confiscation of land of, 149 ; sale 

of land of, 149; made hostile by 

confiscation, 150; constitutional 

reform of, 150 ; 221. 



Clergy: See Church. 

Coates vs. Mayor of New York: 89. 

Coblenz: centre of French Emigra- 
tion, 151. 

Code, Civil: established by Empire, 
201 ; impartially enforced, 202. 

Collot d'Herbois: quarrels with 
Robespierre, 194; denounced by 
Saint- Just, 197; presides in Con- 
vention on Thermidor, 198. 

Committee of Publi( Safety: organ- 
ized, 177 ; reorganized, 178; Robes- 
pierre and Carnot join, 178; dis- 
cord in, 194; powers of, enlarged, 
225. 

Commons; House of: landlords' su- 
premacy over, 133, 134; reform 
of, 134, 135. See Parliament. 

Corns took, Mr. Justice: in Wyneha- 
mer vs. the People, 95. 

Condi, Prince de: 154. 

Congress: judicial interference with, 
68-79. 

Constitution: supported by Wash- 
ington, 7; crisis when adopted, 8, 
9; an imperfect protection, 45; 
judicial interpretation of, in Ameri- 
ica, 44, 45 ; only in America inter- 
preted by judiciary, 47; contro- 
versy between Jefferson and Ham- 
ilton touching, 49-53 ; inoperative 
to restrain Congress, 75-79, in; 
made inflexible by judicial de- 
cision, 83; altered by judicial 
legislation, 89 ; according to Jeffer- 
son, wax in hands of judiciary, 
127; fetich to lawyers, 214, 219. 
See Police Power. 

Convention: meets directly after 
Valmy, 173; establishes Republic, 
173; organizes Revolutionary Tri- 
bunal, 17s ; Girondists expelled 
from, 177; declares lev&e en masse, 
178; reorganizes Committee of 
Public Safety, 177; reorganizes Tri- 
bunal, 181 ; passes law of Prairial, 
183 ; supports dictatorship of 
Robespierre, 184 et seq.; stops 
Danton's defence, 186; Revolu- 
tion of Thermidor, 196-198. 



INDEX 



233 



Coruie: Parliamentary decision 

touching, 106 ; nature of, 140 ; 
Edict touching, 140; Edict of, 
rejected by ParUament, 142. 
t Courts, American: obstruct Mr. 
Roosevelt, 4 ; have assumed polit- 
ical power; See C our is, Political; 
have sustained Capital, 16; im- 
suited to decide political questions, 
78 ; imable to bar encroachments on 
American Constitution, 75, in; 
a bar to administrative reforms, 
218; have become a menace to 
order, 219 ; tending to become ad- 
ministrative boards, 226; imlikely 
to be a protection to Capital, 229. 
See Courts below. 

Courts, French: Parliament of Paris, 
the essence of privilege, offices in, 
vendible, 136, 141 ; refuses to regis- 
ter Turgot's edict touching corvee, 
141 ; defines law of caste, 142 ; tor- 
ture regularly used by, 154; old 
judicial system reorganized by 
National Assembly, 169 et seq.; 
reorganization inevitable since old 
courts were semi-poUtical, 169 et 
seq.; puie political coiu:ts organ- 
ized by Danton, 175 et seq.; reor- 
ganized, 181; see Revolutionary 
Tribunal, Danton, and Fouquier- 
Tinville; Modern French courts, 
organized under Empire, have been 
stable because non-f)olitical, 201 ; 
while old French coiurts had poht- 
ical bias, and therefore abolished, 
220; the revolutionary criminal 
coirrts were administrative boards, 
223. See Political Courts. 

Courts, Judicial: definition of, 76; 
relation of, to Legislature, 76; 
should administer a code of ab- 
stract principles, 81 et seq.; this 
function impossible in America, 81, 
82, 83; essentially conservative in 
contrast to legislatures, 106; 
should never discriminate, 106, 
107; legislation by, destroys, 113; 
duty of, to protect civil rights, 114, 
115; English and modern French 



Courts true judicial Courts, 114, 
129, 130, 201, 202 ; a defence to the 
weak, 219. 

Courts, Political: Roosevelt's at- 
tacks on, 4; in America, 34; ef- 
fective administration with, im- 
possible, 34 ; Kings of Israel, polit- 
ical judges, 37; David and Uriah 
the Hittite, 38 et seq.; English 
political courts, 40 etseq.; Jeffreys, 
C. J., 41 et seq.; American and 
foreign courts, 45; interference 
with legislation makes courts 
political, 47 ; political parties have 
tried to control American coiu-ts, 
48 et seq.; political controversies 
touching, in America, 50 et seq, 
S4 ; Kentucky Resolutions, 59, 60 ; 
Marbury vs. Madison, 63 et seq.; 
Impeachment of Chase, 67 et seq.; 
Dred Scott Case, 70; Hepburn vs. 
Griswold, yi et seq.; Income Tax 
Case, 74; Distinction between 
municipal and political law, 81 e^ 
seq.; Police Power, a political 
function, 89 et seq.; see Police 
Power; system tends to create 
active judicial legislation, 124, 
125; Trans-Missouri and Stand- 
ard Oil Cases, 116 et seq.; Judi- 
cial political functions, lead to 
elective judiciary and recall, 128; 
old French judiciary political, 141 
et seq.; Danton's Revolutionary 
Tribunal a political court, 168 et 
seq.; see Revolutionary Tribunal; 
in France political courts ceased 
with the Terror, 200, 201; in 
France poUtical comrts existed prior 
to Revolution, 220; for that cause 
abolished, 220; Danton's explana- 
tion of, in Revolution, 221, 222; 
Danton condemned by, 222, 223; 
are administrative boards, 223; 
no protection to Capital, 229. 

Courts, Roman: 112,113. See Prae- 
tor. 

Court, Supreme: partisan, 54, 57; 
arbitrator between Nation and 
States, 58, 59, 62; Marbury vs. 



234 



INDEX 



Madison, 63 etseq.; attack on and 
impeachment of Chase, 67; Mis- 
souri Compromise, 70; Hepburn 
vs. Griswold, 71 ; Knox vs. Lee, 73 ; 
Income Tax Case, 74 ; reorganized 
by slave-owners/ 77; constructive, 
under Marshall, 77; failure of, to 
control Congress, 78; Jay, Chief 
Justice of, 84; Chisholm vs. 
Georgia, 84; Marshall, Chief Jus- 
tice, 85 ; Dartmouth College Case, 
87 et seq.; Charles River Bridge 
Case, 91 ; construction of Police 
Power by, 96 et seq.; subject to 
financial influences, 97 ; follows 
path of least resistance, 97; Cen- 
sor of State legislation, 99; rate 
regulation by, 100 et seq.; defines 
police power, 105 ; tends to dis- 
criminate, 107; Brass vs. N. Da- 
kota, 108; Smith vs. Ames, 109 
et seq.; failed to enforce equality 
before the law because political, 
115; exposition of Sherman .Act 
by, 116 ei seq.; White, Chief Jus- 
tice, in Standard Oil Case, iig et 
seq.; at first aided Centralization, 
218; likely to become an admin- 
istrative board, 226. See Fourteenth 
Amendment, and Dred Scott Case. 
Couthon: drafted law of Prairial, 
183; hateful to France, 192; 
gains control of police, adherent 
of Robespierre, 194; imprisoned 
on Thermidor, 197; liberated and 
reached City Hall, 198; wounded, 
199; executed, 200. 

Damiens: execution of, 155. See 
Torture. 

Danton: a conservative and a lawyer, 
153; counsels audacity, becomes 
Minister of Justice, 159; first 
heard of Vendee plot, 163; coa- 
lesces with Marat, 166 ; responsibil- 
ity for September massacres, 166 
et seq.; defines political crimes, 
169; claimed natural boundaries 
of France, 173 ; provoked war with 
England, 173 ; sustained Dumou- 



riez, 173; reorganizes Tribunal, 
181; arrested, 185; convicted, 
186; advocates Tribunal, 222; 
trial of, 223 ; condemnation of, 223. 

Dartmouth College Case: 87. 

David, King of Israel: sj et seq. 

Disraeli, Benjamin : opinion of Well- 
ington, 134. 

Dred Scott Case: 70, 77, 78, 107. 

Dumouriez: an adventurer and con- 
servative, succeeds Lafayette in 
command, 153; wins Jemmapes, 
173; trusted by Danton, 173; 
plots restoration, 174 et seq.; 
invades Holland, 174; treason of, 
174, I7S- 

Ellsworth, Oliver: appointed Chief 
Justice, 61 ; sent Envoy to France, 
61 ; resigns, 61. 

Emigrants, French: emigration be- 
gins, 146; mental condition of, 
151; plans of, 151; threats of, 
154 et seq.; confidence of, 158 ; 
sufferings after Valmy, 164 et seq. 

Environment: effect of, 231, consolida- 
tion, result of, 204, 205; revolu- 
tions, follow changes in, 180, 206 ; 
changes in, rapid in proportion to 
advances in science, 206 et seq.; 
changes in America inimical to poUt- 
ical courts, 218 e^ seq.; modem, 
is too complex for the predomi- 
nance of the present capitalistic 
type, 226 e^ seq. 

Financiers: See Capitalistic Class. 

Fletcher vs. Peck : 86. 

Flsuriot: mayor of Paris, 194; sup- 
ported Robespierre in Thermidor, 
198; executed, 200. 

Fleurus: Campaign of, 195, 106, 224. 

Fouquier-Tinville : made prosecuting 
officer of Tribunal, 175; prose- 
cutes Danton, 185; asked Con- 
vention to silence Danton, 186; 
imprisons Paris-Fabricius, 187 ; 
condemned, 224. 

Fourteenth Amendment: broadens 
jurisdiction of Supreme Court, 



INDEX 



23s 



96; effect of, gg et seq.; Standard 
Oil Case under, 126. 

France: old regime in, 136 et seq.; 
Privilege in, 138; condition of in 
1793, 139- See Courts, French; 
Emigrants; Revolution; Revolu- 
tionary Tribunal. 

Francis II: comes to throne, 152. 

George III: reactionist, 152. 

Giles, William Branch: Conversa- 
tion of, 68. 

Girondists: expelled from Assembly, 
177; executed, 184, 185. 

Grant, U. S., General: reverses Hep- 
bum vs. Griswold, 71. 

Guilds: monopolies, 22; regulation 
of, by Parliament, 22 ; destroyed 
by invention of artiUery, 23. 

Hamilton, Alex.: defence of Consti- 
tution, 5; distrusts constitutional 
limitations, 44, 45; tiieories of 
American sovereignty, 49-55; his 
controversy with Jefferson touch- 
ing constitutional limitations, 49- 
53 ; defines judicial wiU and judg- 
ment, 52, 96, loi ; theory of, touch- 
ing liability of sovereign, 80, 81. 

Harlan, Mr. Justice: in Standard 
Oil Case, 122 et seq. 

Henriot: ordered to arrest Fouquier, 
186; friend of Robespierre, 194 ; his 
action on 10 Thermidor, 198; exe- 
cuted, 200. 

Hepburn vs. Griswold: 71-73, 124. 

Highways: an attribute of Sover- 
eignty, 14; administration of by 
Romans, 15; by France, 15; views 
of capitalists touching, 209. 

Hoar, Samuel B.: interferes in Hep- 
bum vs. Griswold, 71-73- 

Hoche: preferred by Camot, 179; 
defeats Austrians, 193. 

Holmes, Mr. Justice: ^defines Police 
Power, 105, 106. 

House of Lords: highest English 
tribunal, 114; as court, political 
influences excluded from, 114; 
fall of, 129 et seq.; remains highest 
cpyrt of appeal, 130. 



Huskisson, Wm.: breach with Well- 
ington, 134. 

Interstate Commerce Law: 3. 

Jackson, General: appointed Taney 
Chief Justice, 54; successful poli- 
tician, 212. 

Jay, John: appointed Chief Justice, 
S3 ; legal theories of, 80 ; in " Chis- 
holm vs. Georgia," 84; declines 
Chief Justiceship in 1800, 85; 
failed to sustain equality before 
the law, 115. 

Jemmapes: Dumouriez wins battle 
of, 173- 

Jeffreys, Chief Justice: 41, 43. 

Jefferson, Thomas: dislikes judicial 
interpretation of Constitution, 48; 
controversy with Hamilton on it, 
48, 49, 50, 51 ; controversy with 
Marshall, 59; nullification, 60; 
Kentucky resolutions, 60; con- 
troversy touching Marbury vs. 
Madison, 63-66 ; impeaches Chase, 
67; declares Constitution to be 
wax in hands of judiciary, 127; 
insisted on nullification, 218. 

Jourdain: Carnot puts in command, 
179 ; campaign of Fleurus, 195. 

Judicial Function : considered. Chap. 
II, 36; severed from executive 
function, 40, 43; judicial will and 
judgment defined, 52; cannot be 
mingled with politics, 127, 219 et 
seq. See Courts and Revolutionary 
Tribunal. 

Judiciary: subserviency of, 44; sub- 
jected to pressure because of con- 
stitution, 45, 47; censorship of 
legislatures confined to America, 
47; political, 53, 54; political must 
be partisan, 53-57 ; distinction be- 
tween courts and legislatures, 76; 
exposed to pressxire, 82; elective 
in New York, 128; recall of, 129; 
status of old French, 136 et seq.; 
modern French abstains from poli- 
tics, 201; tends to become tool 
of majority when invested with 



236 



INDEX 



political power, 226. See Courts 
and Revolutionary Tribunal. 

Kellermann: wins victory of Valmy, 

ISO- 
Kentucky Resolutions: 60. 
Knox vs. Lee: 73. 

Labor: a monopoly, 27; war on 
capital, 28; coercive arbitration 
of, 30 ; government unable to con- 
trol, 227. 

Lafayette: a conservative, 153; tried 
to save the king in 1792, 153; 
laughed at by Court, 153 ; Queen 
refused to be saved by, 154; be- 
trayed by Coiurt, 157. 

Landlords, English: hold seats in 
House of Commons as incorporeal 
hereditaments, 87, 88 ; rise of, 133 ; 
control of House of Commons, 133 ; 
fall of, 135. 

Law: relative development of, in 
eighteenth and twentieth centvuies, 
II, 12; Washington's problem 
touching, simple, 12; twentieth 
century insufficient for modern 
purposes, 12, 13; equality before, 
30, 82; Roman, flexible, 83; 
Praetor's function, 83; codifica- 
tion of, 112 etseq.; equality before, 
under written constitution, 115; 
of Caste, 142, 152, 155; tortures 
under, 154, 182; see Torture; 
combination to suppress equaUty 
before, in French Revolution, 161 ; 
reformed by National Assembly, 
170 etseq.; of Prairial, 183; equal- 
ity before, estabUshed in modem 
France, 201 ; attitude of capital- 
ists toward, 212 et seq.; of Jaco- 
bins toward "suspected persons," 
22s; Saint- Just denounces "the 
rich" under, 225. 

Lawyers: Roman, superiority of, 
112; abiUty of, in the age of 
Washington, lis; attitude toward 
Constitution, 214; selected by 
CapitaUstic Class, 214; reverence 
Constitution, 219 ; French, 220. 



Legislatures: the antithesis of 
courts, 76; dispensations to, 
granted by courts imder Police 
Power, 89 ; cannot be trustworthy 
court, 113. StQ Police Power. 

Leopold II: conference at Pilnitz, 
149 ; restraining influence on IVf arie 
Antoinette, 152 ; death of, 152. 

Lincoln, Abraham: appointed 
Chase Chief Justice, 54. 

Louis XVI: attends banquet at 
Versailles, 146; carried to Paris, 
146; captive in Tuileries, 146; 
plots escape to Metz, 146 ; created 
by Caste, 147 et seq.; defends 
Caste, 148; tries to join Army of 
Bouill^, 148; captured in Tuile- 
ries, IS7-IS8; imprisoned in 
Temple, 158; Royalist indiffer- 
ence to life of, 161; beheaded, 
173- 

Louis XVIII: See Comte de Provence. 

Machecoul: massacres at, 165; in- 
surrection of Vendee begins at, 
174- 

Mallet du Pan: sent to Duke of 
Bnmswick, 155; helps to draw 
Manifesto, 156. 

Marbury vs. Madison: 63-66, 67. 

Marie Antoinette: attends banquet 
at Versailles, 146 ; carried to Paris, 
146; sneers at Mirabeau, 147; 
created by Caste, 147 et seq.; 
sneered at Lafayette, and refused 
to be saved by him, 153, 154; 
sent to Temple, 158; her distrust 
of her brother-in-law, 161 ; dis- 
like of the Duke of Orleans, 189. 

Marshall, John: appointed Chief 
Justice, S3, 54, 61 ; constitutional 
theories, 57, 58; controversy with 
Jefferson, 59; character of, 62, 
63 ; decides Marbury vs. Madison, 
63, 64 ; constructive genius of, 77 ; 
legal theories of, 80 ; theory touch- 
ing contracts, 85-88; in Dart- 
mouth College Case, 87; failed to 
sustain equality before the law, 
IIS. 



INDEX 



237 



Massacres: of Guards at Versailles, 
146; of the Swiss Guard, 157; 
September, 167 et seq.; at Mache- 
coul, 174; of patriots at Lyons, 
177; Carrier's massacres at 
Nantes, igi. 

Mirabeau: intrigues with Court, 147 ; 
exasperated with Queen, 147; a 
conservative, 14s, 153. 

Missouri Compromise; 70, 79. 

Monopoly: sovereign powers are a, 
13 ; tendency of government to 
absorb, 20; trade, 21 ; regulation 
of, 21 ; mediaeval, 22 ; Guilds, 22 ; 
regulation of by Parliament, 22 ; 
royal grants of, held bad, 23, 24 ; 
anti-monopoly litigation, 25 ; not 
always formed consciously, 26; 
automatic result of concentration 
of capital, 26 ; of labor 27 ; causes 
rate regulation, and judicial su- 
pervision, 100 et seq.; Trans- 
Missomri Case, 116 ; Standard Oil, 
119; statute to restrain, 124. 

Munn vs. Illinois : loi. 

National Assembly: States General 
declared to be, 14s; orders fused 
in, 14s ; King dissolves, 14s ; is- 
sues assignats, confiscates Church 
property, 149; secularizes alle- 
giance of the clergy, 150; reforms 
law, 170 et seq. 

Nelson, Senator Knute: report on 
Sherman Act, 118, 119. 

Nem Jersey vs. Wilson: 86. See 
Taxes. 

New York City: politics of, capita- 
lists corrupt, 210 et seq. See Tam^ 
many Hall. 

Notables: assembly of, 144. 

Orleans, Duke of: called EgaUt6, 
history of, 187, 188 et seq.; ar- 
rested by Robespierre, 190; exe- 
cuted, 191. 

Parliament, English: regulates medi- 
aeval monopoly, 22; absolute, 51 ; 
sole grantor of monopoly, 24; 



seats in, private property, 87, 88 ; 
landlords acquired right to return 
members of, 133 ; Wellington op- 
poses reform of, 134; Reform bill 
passed, 135 ; right to return mem- 
bers of House of Commons an 
incorporeal hereditament, 88, 137. 

Parliament of Paris: offices in, pur- 
chasable, 136; judicial position in 
heritable, 137; Turgot obtained 
place in, 140; constitutional power 
of, 141 ; opinion of touching Cor- 
vee, 142; refused to register laws 
passed by notables, 144 ; used tor- 
ture, 154, iss; discredited, 170; 
new judiciary resembled, 171 ; 
caused friction which contributed 
to revolution, 219; a semi-pohti- 
cal court, 141, 220. 

Pichegru: put in command, 179; 
takes Antwerp, 195. 

Pilnitz: meeting at, 149; manifes- 
toes at, ISS, 156; royalist com- 
mentary on declaration at, in 1791, 
161. 

Pinckney, Charles: suggests con- 
gressional power over State legis- 
lation, 56. 

Police Power: orgination of, theory 
of, 89 ; defined, 92, 93, 94, los ; ex- 
tension of, 96-106; effort at defi- 
nition of, 98, los; reasonable ex- 
ercise of, 98-ios, 108, 109 et seq.; 
exercise of in Standard Oil Case, 
I2S ; identical with principle under- 
lying Revolutionary Tribunal, 223. 

Preetor: Roman, fimction of, 83. 

Pr atrial: law of, drafted, 183; 
executions under, 191. 

Prices: See Monopoly. 

Prussia: King of, at Pilnitz, 149; 
manifesto of, isS, at Valmy, 164. 

Railways: highways, is; pubUc 
agents, is ; owned by private per- 
sons, 16; rates are taxes, 16, 17; 
Trans-Missouri Case, 116 et. seq. 

Recall: Mr. Roosevelt's proposition 
to recall judicial decisions, 4; of 
judges, an effect of political courts. 



238 



INDEX 



129; of judges, a revolutionary 
measure, 226. 

Reform Bill: of 1832, 135. 

Revolution, French: caused by in- 
tellectual rigidity, 135; condition 
of France prior to, 136 et seq.; 
judicial system contributed to, 137 ; 
unequal taxes contributed to, 138, 
139; Turgot attempted to mod- 
erate, 140 et seq.; destroyed Caste, 
143, 201 ; beginning of, 144, 145 ; 
aristocracy faUed to imderstand, 
147 et seq.; caused emigration of 
aristocracy, 148; created peasant 
land-owners, 149, 150; Caste re- 
sisted, 152; combination to sup- 
press, 151, 155; won at Valmy, 
159; royalist theories concerning, 
161 ; September massacres, 167 ; 
considered servile revolt, 168; due 
to Royalists, 165, 168; reforms law, 
170 etseq.; coalition against, com- 
pleted, 173; culminates in 1793, 
176 ; see Committee of Public Safety ; 
insurrection against, 178; vic- 
tories won by, 179, 180; creates a 
criminal process, 182 et seq.; 
famous trials diuing, 184 et seq.; 
violent period of, ends with Thermi- 
dor, 196; can never be repeated, 
203, 225. 

Revolution, Industrial: causes fall of 
English landlords, 133 ; causes 
American revolution, 206; causes 
rise of Southern planters, 206; of 
industrial capitaUsts, 207. 

Revolutionary Tribunal: organized, 
175; executions by, in 1793, 175, 
176 ; reorganized by Danton, 181 ; 
defined treason, 181 et seq.; in- 
timidated, 182-187; Danton be- 
wailed erection of, 223; an ad- 
ministrative board, 223; always 
obeyed the majority, 224; con- 
demns the rich, 225 ; impossible in 
America, 225, 226. 

Revolutions: occur periodically, 6 et 
seq.; caused by advance in applied 
science, 10; violent revolutions 
caused by resistance to change, 



133; frequent in proportion to 
changes in environment, 204-208; 
intellectual exhaustion caused by, 
proportionate to frequency, 206. 

Robespierre: joins Committee of 
Public Safety, 178; demands sup- 
pression of forms in Tribunal, 183 ; 
mahce toward Duke of Orleans, 
191 ; quarrels with BiUaud and 
Callot, 194; power culminates, 
194; denounces TaUien, 196; sends 
Therezia to La Force, 196; im- 
prisoned, 198; liberated, 198; 
wounded on Thermidor, 199; 
executed, 200. 

Roland: would abandon Paris, 158, 
159; faUed to stop Massacres, 167. 

Roosevelt, Theodore: his problem in 
1912, 3 ; difiSculties of, in 1912, 4, 5, 
6; attitude to centrahzation, 6; 
offence against capital, 32. 

Rouerie, Marquis de la: goes to 
Coblenz, 150. 

Ruling Class: rigid, 33; in France, 
nobility, clergy, and lawyers, 142— 
143 ; necessarily destroyed, 143, 
201 ; struggle between them and 
Commons, 145; politically incapa- 
ble, 147 et seq.; emigrants, 148, 
151 ; creatures of Caste, 151 etseq.; 
manifestoes of, 155 et seq.; de- 
feated at Valmy, 159; their plan 
of campaign, 161 et seq.; brought 
on massacres, 165 et seq.; error of, 
touching Revolution, 168; wage 
civil war in France, 178; exter- 
minated, 201 ; shifts of, 205. 

Saint- Just: denounces Billaud, Col- 
lot, and Camot, 197; executed, 
200; denounces rich under law 
of "suspected persons," 225. 

Science, Applied: the cause of Rev- 
olution, 10; effect of, in nine- 
teenth century, 11 et seq.; effect 
of applied science on sovereignty, 
14 ; effect on Police, 23 ; effect on 
Labor, 27 ; increases cost of ad- 
ministration, 139; causes social 
acceleration and disintegration. 



INDEX 



239 



203-205 ; capitalists raise standard 
of, 217; its predominaiice, a men- 
ace, 217. 

Sherman Act: 3 ; Senate sustains, 
118; passed in 1890, 124; Con- 
gress may amend, 126 ; amended 
by White, C. J., 119, 123-126. 

Slaughter-Eouse Cases: 99. 

Smith vs. Ames: 109. 

Sovereignty: Washington's problem 
touching, 9 et seq.; powers of, de- 
fined, 13 ; held as a trust, 13 ; 
when held irresponsibly, termed 
slavery, 14; absorbed in United 
States by private persons, 15 et 
seq.; sovereignty is a concentra- 
tion of energy, 19 et seq.; a true 
monopoly, 20-24; capital as sov- 
ereign, 29 ; capitalistic sovereignty 
must be strong, 29-34; relation 
of coiu-ts to, 34; political courts, 
instruments of despotic, 37-44; 
Jefferson's theory touching usur- 
pation of, by American coxirts, 52, 
127 ; State sovereignty, 80-81 ; 
courts usurp imder Police Power, 
gi et seq.; American now hinges 
on Police Power, 105; see Police 
Power; cannot be limited by 
courts, III et seq.; French sover- 
eignty passes to National Assem- 
bly, 14s ; caste sovereignty, fall 
oi, 148 et seq.; see Caste; absorbed 
by Committee of Public Safety, 
178; see Committee of Public 
Safety; Revolution, French; and 
Revolutionary Tribunal; capitalist, 
conceives sovereign powers to be 
for sale, 209; capitalistic notion 
of sovereign functions, 213 et seq.; 
sovereignty of U. S. once asserted 
through Supreme Court, 218; 
Supreme Court now disintegrates 
sovereignty, 218, 219; adminis- 
trative sovereignty cannot be 
exercised through true courts, 223, 
224; see Political Courts; modern 
capitalists apparently unable to 
hold their sovereignty, 226 et seq. 

Standard Oil Case: iig et seq. 



States General: summoned, 144. See 

National Assembly. 
Story, Joseph: extract from opinion 

of, in Charles River Bridge Case, 

8; view in Charles River Bridge 

Case, 90, 91. 

Tallien: sketch of, 195; fell in love 
with Therezia Cabarrus, 195; 
elected to Convention, 196; saves 
Therezia, 196; attacks Robes- 
pierre, 197; joined party of the 
Right, 224. 

Tammany Hall: capitalistic engine, 
211; used to nominate judges, 215. 

Taney: Chief Justice, appointed 
by Jackson, 54; in Dred Scott 

^ Case, 70 ; in Charles River Bridge 
Case, 91. 

Terror: how caused, 176 et seq.; how 
ended, 192 et seq.; loathed by 
France, 192 ; instnmients of, put 
to death, 193 ; end of, 195, 200. 
See French Revolution and Com- 
mittee of Public Safety. 

Thermidor, Tenth of: Saint-Just tries 
to denounce Billaud, CoUot, and 
Carnot, 196-197 ; attack on Robes- 
pierre and Saint- Just, 197; suc- 
cessful, 198 et seq.; executions on 
eleventh of, 224, 225. 

Torture: used as means of pimish- 
ment in army, 147, 155 ; an inte- 
gral part of the old French law, 
154; public torture habitual, tor- 
ture of Damiens, 154, 155 ; French 
emigrants believed that they could 
intimidate the revolutionary army 
by threats of, 151, 154, 155 ; threat- 
ened by them and by the Duke of 
Brunswick, 156, 157 ; used by the 
insurgents at Machecoul in Vendue, 
165 ; a scandal vmder the old re- 
gime and suppressed by Revolu- 
tion, 170, 182 ; Church for ages 
habitually tortured, and so did 
French courts, 182. 

Toulon: surrendered to English, 178; 
decrease in population of, 191 ; 
evacuated, 193. 



240 



INDEX 



Trans-Missouri Case: ii6 et seq.; 

mle in, approved by Congress, 

ii8; overruled by White, C. J., 

1 19 et seq. 
TuUeries: stormed August loth, 

157; plan for defence of, 157, 162. 
Turgot, Robert: history of, 139 et 

seq.; edict touching Corvee, 140; 

breach with Parhament, 141; 

predicts insolvency of France, 143. 

Uriah, the Eittite: Case of, 38. 

TJ. S. Steel Co. : management of, 29. 

Valmy: victory of, 159, 161 et seq. 

Vendee, La: cause of insurrection in, 
150; begins in, 165, 174; massa- 
cre at Machecoul, 165; defeat of 
insurrection in, 193. 



Vergniaud: trial of, 184. 
dists. 



See Giron- 



War Power: 97. 

Washington, General: reform of Con- 
federation by, 7; his solution of 
problems presented by Confedera- 
tion, 9, 10; his advantage as a re- 
former in eighteenth century, 11; 
eighteenth century law sufficed 
for, 12, 13 ; appoints John Jay 
Chief Justice, 53; appoints Ells- 
worth Chief Justice, 61. 

Wellington, Duke of: in the reform 
agitation, 134, 135; Disraeli's 
opinion of, 134, 135. 

White, Edward Douglas: Chief Jus- 
tice, in Income Tax Case, 74; in 
Standard Oil Case, 119, 120 et seq. 



T 



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